[Congressional Record (Bound Edition), Volume 150 (2004), Part 11]
[Senate]
[Pages 15313-15375]
[From the U.S. Government Publishing Office, www.gpo.gov]




        FEDERAL MARRIAGE AMENDMENT--MOTION TO PROCEED--Continued

  Mr. REID. Mr. President, I have spoken to the manager of the bill for 
the majority and I want to say a few brief words now and then I will 
yield 30 minutes to the Senator from Wisconsin. Following that, 
Republicans will speak for whatever time they desire and the Democrats 
will then follow with remarks by Senator Durbin for up to 30 minutes.
  I simply ask unanimous consent that following my brief remarks, 
Senator Feingold be recognized for up to 30 minutes; following his 
remarks the time revert to whatever the majority feels appropriate; 
following their remarks, that Senator Durbin will be recognized for up 
to 30 minutes; then trying to balance out this time, following the 
reversion back to Republicans, Senator Lautenberg will be recognized 
for up to 15 minutes.
  The PRESIDING OFFICER. Is there objection? Without objection, it is 
so ordered.
  Mr. REID. Mr. President, the Reno Gazette-Journal, a newspaper that 
has been in existence for many years, a Gannett newspaper in Reno, NV, 
which is certainly not a bed of liberalism, published a very short 
editorial today. It says:

       The plan to redefine marriage in a constitutional amendment 
     could not be a better election year wedge. The fact that 
     Lynne Cheney, champion of conservative causes, parted company 
     with her husband, Vice President Dick Cheney, on same-sex 
     marriage is illustrative of just how divisive it's become.
       Typically, vice presidents support their presidents and 
     political wives back their husbands, regardless of personal 
     feelings. This time, the human aspect of the debate was too 
     much for a political wife to overcome.
       As the mother of a lesbian, Lynne Cheney, of necessity, 
     would be finely attuned to all the arguments. And no one 
     should expect a parent to disregard an offspring for a 
     political agenda. Anyway, it is debatable that an amendment 
     would help a traditional conception of marriage. And, some 
     Senators indicate they are less than willing to try.
       The administration is wading into deep waters, fracturing 
     families, and merging the church and the state. That's not 
     the way the system is supposed to work. It would be best for 
     government to leave this issue alone.

  I am not an avid reader of the Washington Times. In fact, I didn't 
read it today. But it was brought to my attention and I did read the 
Washington Times:

       GOP split on marriage proposals.
       Senate Republican leaders, who had been seeking a clear 
     vote on a constitutional amendment on same-sex ``marriage,'' 
     yesterday found themselves outmaneuvered by Democrats and 
     divided over which of two proposals to pursue.
       President Bush and Senate Republican leaders support the 
     Federal Marriage Amendment, which defines marriage as the 
     union of a man and a woman and restricts

[[Page 15314]]

     the court's ability to rule on the issue. But some 
     Republicans want to vote on an alternative, simpler version--
     leaving Republican leaders scrambling. . . .

  Let's understand where we are on this issue. Senator Daschle, in good 
faith, Friday, came to the floor and said we need to get to the 
business at hand. There is an important marriage amendment pending 
about which people on both sides of the aisle have strong feelings. 
Therefore, it would be better that we vote on the amendment, the one 
that has been on the Senate floor. We were told at that time by the 
majority leader that sounded like a pretty good idea, that he would 
have to check with his caucus.
  Surprisingly, Friday we were unable to get that unanimous consent 
agreement entered. Monday we come back--no deal. In the morning, we 
were told they want to vote on two constitutional amendments regarding 
marriage. In the afternoon, we were told they want to vote on three 
constitutional amendments on marriage.
  It is a simple choice. We are willing to vote on the legislation 
before this body, S.J. Res. 40. Why don't we do that? The reason we are 
not going to do it is because the majority has decided they want the 
issue. They do not care how the votes fall; they want the issue. That 
is wrong. Everyone should understand this is a march to nowhere, and 
the majority knows that.
  I don't know what is happening around here. Class action is an issue 
for which there were enough Members here--Democrats and Republicans--to 
pass it. The majority would not even allow a vote--not a single vote--
on that issue. They want the issue.
  They want to bash Democrats as being opposed to any reform of the 
tort system.
  On medical malpractice, on asbestos, on class action they want the 
issue. They don't want to resolve the issue. One would think the people 
in the State of Ohio, in the State of Texas, in the State of Nevada, in 
the State of Wisconsin, in the State of Illinois, and in every other 
State would know how Senators feel on the amendment before this body.
  They are not going to get that chance because we are going to be 
forced into a procedural vote. That is wrong.
  We are willing to vote on S.J. Res. 40. We have said that. We keep 
saying that, but, no, the issue is more important than the merits of 
this matter, which is too bad.
  The PRESIDING OFFICER. The Senator from Wisconsin.
  Mr. FEINGOLD. Mr. President, the Constitution of the United States is 
a historic guarantee of individual freedom. It has served as a beacon 
of hope, an example to people around the world who yearn to be free and 
to live their lives without government interference with their most 
basic human decisions.
  I took an oath when I joined this body to support and defend the 
Constitution. I am saddened, therefore, to be standing on the floor 
today debating a constitutional amendment that is inconsistent with our 
Nation's history of expanding freedom and liberty. It is all the more 
unfortunate because it has become all too clear that having this debate 
at this time is aimed at scoring points in an election year. Even a 
leading proponent of this amendment admits that we are engaged in a 
political exercise, pure and simple.
  Paul Weyrich, president of the Free Congress Foundation, recently 
stated:

       The President has bet the farm on Iraq.

  So the proper solution, according to Mr. Weyrich, is to ``change the 
subject'' from Iraq to the Federal marriage amendment.
  Mr. Weyrich also recently stated:

       If [President Bush] wishes to be reelected then he had 
     better be up front on this issue, because if the election is 
     solely on Iraq, we're talking about President Kerry.

  I am loathe to come to that kind of conclusion. But I believe it to 
be the truth.
  There we have it. This proposed constitutional amendment is a poorly 
disguised diversionary tactic that is essentially a political stunt.
  Will this proposed constitutional amendment create jobs for mothers 
and fathers, husbands and wives, and stop the flow of American jobs 
overseas?
  Will this proposed constitutional amendment secure a good education 
for our children? Will this proposed constitutional amendment improve 
the lives of American families on any of these issues? Obviously not.
  Instead of Congress and the President getting to work on issues that 
would help American families, we are spending time--in fact a lot of 
time--on the Senate floor on a poorly thought out, divisive, and 
politically motivated constitutional amendment that everyone knows has 
no chance of success in this Chamber. What is even more troubling is 
that this effort risks stoking fear and encouraging bigotry toward one 
group of Americans.
  So here we are, debating a constitutional amendment in search of a 
justification. This debate is not really about supporting marriage. We 
all agree that good and strong marriages should be supported and 
celebrated. The debate on this floor today is about whether we should 
amend the U.S. Constitution to define marriage. The answer to that 
question has to be no. We do not need Congress to legislate for all 
States, for all time, on a matter that has been traditionally handled 
by the States and religious institutions since the founding of our 
Nation. For that reason alone, this amendment should be defeated.
  At the outset, let me state in the strongest terms I can that I 
object to the Senate discussing and debating this proposed 
constitutional amendment without it first going through the Senate 
Judiciary Committee. We are here today debating a proposed amendment to 
our Nation's governing charter. In fact, this is the very first time 
this particular amendment has even been brought before the Senate, and 
neither the Judiciary Committee nor the Constitution Subcommittee has 
debated and marked up this proposal.
  One might ask why the supporters of this proposed amendment feel the 
need to rush to the floor and bypass the committee process. I suspect 
it is because they fear they do not have enough votes on the committee 
to approve the amendment and report it to the floor. It may also be 
that the time it would have taken to examine the amendment and debate 
it in committee would have interfered with the predetermined political 
schedule for considering it on the Senate floor. Or perhaps that 
committee consideration would expose the weaknesses in the amendment 
and reduce support in the Senate. But in any event, the decision to 
bypass the committee process is highly unusual and very much to be 
regretted.
  Senate leadership has not previously made a habit of bypassing the 
committee process when it considers a constitutional amendment. In 
fact, in this session of Congress alone, the Constitution Subcommittee 
has held markups on three proposed constitutional amendments: the 
victims' rights amendment, the continuity of government amendment, and, 
most recently, the flag amendment. The Judiciary Committee should be 
allowed to serve its proper role in marking up proposed constitutional 
amendments before they are brought to the Senate floor.
  Respecting the committee process for any piece of legislation is 
important. But it is absolutely necessary for proposed amendments to 
the Nation's Constitution. Amending the Constitution should not be 
taken lightly. A rush to debate and pass this amendment--particularly 
since it raises so many questions--is not in the best interests of this 
body or of this country.
  I might add that in the past quarter century, only two constitutional 
amendments were considered by the full Senate without committee 
consideration. One of these amendments, involving campaign finance 
restrictions, was discharged from committee by unanimous consent so it 
could be debated at the same time as campaign finance reform 
legislation. The other amendment to be brought directly to the Senate 
floor was an amendment to abolish the Electoral College and provide for 
the direct election of the President. What happened on the Senate floor 
to that amendment is very instructive.
  In 1979, the current chairman of the Judiciary Committee, the Senator

[[Page 15315]]

from Utah, was serving in the position that I hold today, the ranking 
member of the Constitution Subcommittee. He strongly objected to 
allowing a constitutional amendment to be brought to the Senate floor 
without first going through the Constitution Subcommittee and the 
Judiciary Committee.
  Senator Hatch stated the following during the debate in 1979:

       As the ranking minority member of the Committee on the 
     Judiciary, Subcommittee on the Constitution, I feel very 
     strongly that there are ways to propose constitutional 
     amendments and there are ways not to propose constitutional 
     amendments. In this particular case, I think this is not the 
     way to propose a constitutional amendment, and especially one 
     that has the potential of altering the basic democratic 
     federalism of the American political structure.

  He went on to say:

       To bypass the committee is, I think, to denigrate the 
     committee process, especially when an amendment to the 
     Constitution of the United States of America, the most 
     important document in the history of the Nation, is involved.

  I could not agree more with the words of a then somewhat junior 
Senator who is now the distinguished chairman of the Judiciary 
Committee. His view then is exactly my view now, and I think the whole 
Senate should take his position very seriously.
  His position was supported by another distinguished Republican member 
of the Judiciary Committee, Senator Alan Simpson of Wyoming, who said 
the following:

       We are talking about amending the fundamental law of the 
     land--the law that controls the creation and enforcement of 
     all other laws, the law that embodies the procedural 
     consensus and most basic values of all Americans, that gives 
     our nation much of its unity and our government its 
     legitimacy. We should consider proposals to amend the 
     Constitution more carefully than any other measure that comes 
     before us.

  Senator Simpson continued:

       I think the American people would strongly disapprove of 
     what is being attempted here. This kind of procedure should 
     not be used for a constitutional amendment. It is bound to 
     adversely affect--to some degree the legitimacy of the 
     process. I know it will affect us all greatly if this 
     amendment is passed without adequate consideration by the 
     present Senate.

  And he added the following, and having served with Senator Simpson, I 
can imagine the gentle irony in his voice:

       Perhaps I will eventually learn that Senators do not have 
     time to make considered decisions even on amendments to the 
     Constitution. . . . However, I am not at that point yet. I 
     trust it will never be bad form in the U.S. Senate to demand 
     respect for the legislative process.

  Finally, let me quote the then-ranking member of the Judiciary 
Committee, Senator Strom Thurmond, who served in this body for nearly a 
half century and as Chairman of the Judiciary Committee for 6 years. 
Senator Thurmond strongly supported his colleague, the Senator from 
Utah. He said:

       The best place to study these issues is before the full 
     Judiciary Committee of the U.S. Senate. I see no reason why 
     this committee should be short circuited by this bill not 
     being referred here. If a bill of this nature is not going to 
     be referred to a committee to consider it, I do not know why 
     we need Committees in the U.S. Senate.

  Senator Thurmond concluded:

       The Judiciary Committee is the proper machinery for 
     referral of this resolution. It is set up under our rules for 
     considering a measure of this kind. It should be utilized and 
     should not be sidestepped as is attempted to do here with 
     this procedure.

  This debate, which took place just over 25 years ago, had a good 
outcome. The Senate voted to send the constitutional amendment back to 
the Judiciary Committee. Those Senators who urged the Senate not to 
bypass the committee process prevailed.
  Now, a quarter of a century later, we are in a similar situation. All 
of the Democrats on the Judiciary Committee sent a letter to the 
Committee Chairman a few weeks ago, urging him to follow regular order 
on this amendment and let the full Committee and Subcommittee on the 
Constitution debate and mark up this constitutional amendment. I ask 
that our letter be printed in the Record.
  There being no objection, the material was ordered to be printed in 
the Record, as follows:

                                                    June 25, 2004.
     Honorable Orrin G. Hatch,
     Chairman, Senate Committee on the Judiciary, Dirksen Senate 
         Office Building, Washington, DC.
       Dear Mr. Chairman: Last week, the Republican leadership 
     announced that it will bring the Federal Marriage Amendment 
     (``FMA'') to the floor of the Senate during the week of July 
     12. Press reports indicate that this particular date was 
     chosen because some want to have a vote on this amendment 
     prior to the Democratic convention at the end of the month. 
     We urge you to prevail upon your colleagues in the leadership 
     to allow the Judiciary Committee and the Subcommittee on the 
     Constitution, Civil Rights, and Property Rights to debate and 
     mark up the amendment prior to its being taken up on the 
     floor. The Judiciary Committee has a long and productive 
     tradition of considering amendments to the Constitution. We 
     believe that breaking with that tradition in this instance 
     would be a serious mistake.
       The FMA has never before been considered by the Senate. It 
     is a controversial measure sure to inspire heated debate on 
     the floor and in the country. So far, four hearings have been 
     held on this topic in both the Senate and the House. 
     Religious leaders, legal scholars, legislators, psychologists 
     and other health professionals, and advocates for children 
     and families are divided on the need to amend the 
     Constitution in this way. It seems clear to us that there is 
     no consensus in the Senate, or in the country, that this 
     amendment is needed or appropriate.
       Furthermore, while the language of the FMA has recently 
     been modified, there is still significant doubt as to its 
     intent and effect. In these circumstances, we believe it is 
     premature to consider the amendment at all, but at the very 
     least, consideration by the Judiciary Committee may clarify 
     and even narrow the issues for the floor.
       As you know, it is highly unusual for a constitutional 
     amendment to come to the Senate floor without committee 
     action. In the last decade, constitutional amendments 
     relating to a balanced budget, term limits, flag desecration, 
     and victims rights have all gone through the Judiciary 
     Committee prior to receiving floor consideration. The only 
     amendment that received a floor vote without first being 
     marked up in committee was Sen. Hollings' campaign finance 
     constitutional amendment. That measure was discharged from 
     committee by unanimous consent so it could be debated on the 
     floor during debate on campaign finance reform legislation.
       You will undoubtedly recall that during the 96th Congress, 
     a constitutional amendment providing for the direct election 
     of the President and Vice-President was brought directly to 
     the Senate floor. You argued strenuously at that time for 
     ``regular order'': ``As the ranking minority member of the 
     Committee on the Judiciary, Subcommittee on the Constitution, 
     I feel very strongly that there are ways to propose 
     constitutional amendments and there are ways not to propose 
     constitutional amendments. . . . I think this is the way not 
     to propose a constitutional amendment. . . . To bypass the 
     committee is, I think, to denigrate the committee process, 
     especially when an amendment to the Constitution of the 
     United States of America, the most important document in the 
     history of the Nation, is involved.'' Cong. Rec. 5003-5004 
     (Mar. 14, 1979). Your arguments prevailed and the Senate 
     agreed to recommit the amendment to the Judiciary Committee.
       Mr. Chairman, you were right in 1979 that the proper course 
     to follow when an amendment to the Constitution of the United 
     States is proposed is to allow the Judiciary Committee to 
     consider it and report it to the floor before the full Senate 
     is asked to debate it. That is the course that should be 
     followed here. We hope you will continue to protect the 
     jurisdiction of the Committee in discussions with those who 
     want to rush the Senate into a premature vote for political 
     reasons.
       Thank you for your consideration.
           Sincerely,
         Patrick Leahy, Herb Kohl, Charles E. Schumer, Edward M. 
           Kennedy, Dianne Feinstein, Richard J. Durbin, Joseph R. 
           Biden, Jr., Russell D. Feingold, John Edwards.

  Mr. FEINGOLD. Unfortunately, our pleas have fallen on deaf ears. The 
Judiciary Committee, which in the last decade has considered and 
reported to the floor constitutional amendments dealing with a balanced 
budget, term limits, flag desecration, and victims' rights has been 
bypassed for this Federal marriage amendment. I have not heard a 
compelling argument explaining why the committee process should be 
ignored in this case.
  In fact, I have not heard even a remotely persuasive argument of any 
kind why the committee process should be bypassed.
  The committee process is even more important for this amendment than 
for some of the amendments we have considered recently. This amendment 
is being considered for the first time in the Senate. Changes have been 
made to the language of the amendment within

[[Page 15316]]

the past few months. Just yesterday, we heard that further changes are 
being contemplated by some supporters of the amendment. There is 
significant doubt about how this amendment will be interpreted and what 
effect it will have on a whole variety of state and local laws and 
ordinances. It is exactly in this situation that the committee process 
can be very helpful. Issues can be explored in depth and modifications 
can be offered to clarify the meaning and effect of the amendment. It 
is not clear what would happen in our committee if we were given the 
opportunity to mark up this amendment. But I know we would have a much 
better idea of what the amendment does and doesn't do than we have 
today.
  The Framers of the Constitution deliberately put into place a 
difficult process for amending the Constitution to prevent the 
Constitution from being used as a tool for enacting policies better 
left to the legislative process. A proposed amendment must pass both 
houses of Congress by a two-thirds majority, not a simple majority. 
After a proposed amendment has passed both Houses, it must be ratified 
by three-fourths of the states.
  Citizens for the Constitution, a bipartisan blue-ribbon committee of 
former public officials, journalists, professors, and others, has 
suggested a set of guidelines for evaluating proposed amendments to the 
Constitution. The members of this committee are people who do not 
necessarily agree with each other on the substantive merits of proposed 
amendments, but they do agree that a deliberative, respectful process 
should be followed.
  Citizens for the Constitution reports that in the history of our 
nation, more than 11,000 proposed constitutional amendments have been 
introduced in Congress, but only 33 have received the needed 
congressional supermajorities and only 27 of those have been ratified 
by three-fourths of the States. The bar for amending our Constitution 
is very high indeed.
  One guideline from Citizens for the Constitution, is particularly 
relevant to our discussion today. The guidelines ask, ``has there been 
a full and fair debate on the merits of the proposed amendment?'' In 
this case, the answer is no. There has not been a full debate. We have 
had four hearings in the Judiciary Committee but there are still 
unanswered questions about this amendment. This is especially troubling 
because the sponsors of the amendment have changed its text during the 
course of our hearings and even stated conflicting interpretations of 
their amendment. The committee process could help us sort these issues 
out and narrow them for the floor. But the committee process has been 
abandoned for this amendment. That is a real shame.
  The current procedural situation highlights the problem with 
bypassing the Judiciary Committee. The Senator from Colorado introduced 
the first version of the Federal marriage amendment in November of last 
year. A revised version was then introduced the morning of a hearing in 
the Judiciary Committee in March of this year.
  Now, after bypassing the committee to bring the amendment to the 
floor of the Senate, we hear that supporters want a vote on yet another 
version of the amendment. We had four hearings in the Judiciary 
Committee on the issue of same sex marriage, but none of them concerned 
this new text that the leadership now wants to bring to a vote. That is 
why we needed a subcommittee and committee markup on this amendment. So 
alternative language could be considered and debated. That didn't 
happen here and that is why there is ``disarray'' among supporters of 
the amendment as one press report put it this morning. So instead of an 
up or down vote on the amendment before us, we will most likely have a 
procedural vote tomorrow. And the reason for that, make no mistake, is 
that this amendment simply was not ready for floor consideration. It 
wasn't ready. It should have gone through the Judiciary Committee.
  Aside from my objection to the failure to follow the proper process 
and allow committee consideration of this amendment, as was so 
eloquently argued 25 years ago by the Senator from Utah, Senator 
Simpson and Senator Thurmond, I also object to this amendment on the 
merits.
  There is no doubt that the proposed federal marriage amendment would 
alter the basic principles of federalism that have served our nation 
well for over 200 years. Our Constitution granted limited, enumerated 
powers to the Federal Government, while reserving the remaining issues 
of government, including family law, to State governments. Marriage has 
traditionally been regulated by the States. As Professor Dale Carpenter 
told the Constitution Subcommittee last September, ``never before have 
we adopted a constitutional amendment to limit the States' ability to 
control their own family law.''
  Yet, that is exactly what this proposed amendment would do. It would 
limit the ability of states to make their own judgments as to how best 
to define and recognize marriage or any legally sanctioned unions.
  Surely both Republicans and Democrats can agree that marriage is best 
left to the States and religious institutions.
  One of our distinguished former colleagues, Republican Senator Alan 
Simpson, opposes an amendment to the Constitution on marriage. In an 
op-ed in the Washington Post last September, he stated:

       In our system of government, laws affecting family life are 
     under the jurisdiction of the states, not the federal 
     government. This is as it should be. . . . [Our Founders] saw 
     that contentious social issues would be best handled in the 
     legislatures of the states, where debates could be held 
     closest to home. That's why we should let the states decide 
     how best to define and recognize any legally sanctioned 
     unions--marriage or otherwise.

  Columnist William Safire has also urged his conservative colleagues 
to refrain from amending the Constitution in this way. Commentator 
George Will takes the same position.
  I recognize that the current debate on same-sex marriage was hastened 
by a decision of the highest court in Massachusetts issued last fall. 
That decision, the Goodridge decision, said that the state must issue 
marriage licenses to same-sex couples. But the court did not say that 
other States must do so. And it did not say that churches, synagogues, 
mosques, or other religious institutions must recognize same-sex 
unions. Even Governor Romney, who testified before the committee at our 
last hearing, admitted that the court's decision in no way requires 
religious institutions to recognize same-sex unions. No religious 
institution is required to recognize same-sex unions in Massachusetts 
or elsewhere. That was true before the Goodridge decision, and it 
remains true today.
  I might add, that this Federal amendment would appear to interfere 
with the will of the people of Massachusetts who have already taken 
steps to respond to their court's decision. It would very likely 
nullify the state constitutional amendment that is currently pending in 
Massachusetts.
  Now, the supporters of the Federal marriage amendment would have 
Americans believe that if same-sex couples are allowed to marry in 
Massachusetts, we will soon see courts in other states requiring those 
States to recognize same-sex marriages, too. But this is a purely 
hypothetical concern, hardly a sound basis for amending our Nation's 
governing charter.
  As Professor Lea Brilmayer testified at a Constitution Subcommittee 
hearing, no court has required a State to recognize a same-sex marriage 
performed in another State. And as Professor Carpenter testified, ``the 
Full Faith and Credit Clause has never been understood to mean that 
every state must recognize every marriage performed in every other 
state. Each state may refuse to recognize a marriage performed in 
another state if that marriage would violate the public policy of that 
state.''
  In fact, Congress and most States have already taken steps to 
reaffirm this principle. And these actions so far stand unchallenged. 
In 1996, Congress passed the Defense of Marriage Act, a bill I did not 
support, but it is now the law. DOMA is effectively a reaffirmation of 
the Full Faith and Credit Clause as applied to marriage. It states

[[Page 15317]]

that no State shall be forced to recognize a same-sex marriage 
authorized by another state.
  In addition, 38 States have passed what have come to be called 
``State DOMAs,'' declaring as a matter of public policy that they will 
not recognize same-sex marriages.
  There has not yet been a successful challenge to the Federal or State 
DOMAs. Of course, it is possible that the law could change. A case 
could be brought challenging the Federal DOMA or a State DOMA, and the 
Supreme Court could strike it down. But do we really want to amend the 
Constitution just in case the Supreme Court in the future reaches a 
particular result? We should all pause and think about the 
ramifications of our action before we launch a preemptive strike 
against the governing document of this Nation.
  Former Representative Bob Barr, the author of the Federal DOMA, 
strongly opposes amending the Constitution. He believes that amending 
the Constitution with publicly contested social policies would 
``cheapen the sacrosanct nature of that document.''
  He also warned:

       We meddle with the Constitution to our own peril. If we 
     begin to treat the Constitution as our personal sandbox, in 
     which to build and destroy castles as we please, we risk 
     diluting the grandeur of having a Constitution in the first 
     place.

  My colleagues, those are the words of the author of the Federal DOMA 
statute. That is what he said about the wisdom of trying to amend the 
Constitution in this manner.
  Concerns have also been raised that the Federal marriage amendment 
could prevent the people of a State from choosing to recognize civil 
unions or grant domestic partnership benefits at the State level. The 
proposed amendment could be construed to challenge already existing 
civil union and domestic partnership laws or to bar future attempts to 
enact such laws. Representative Barr also warned that the proposed 
marriage amendment could apply to not only States, but private sectors 
as well. Certainly, our hearings in the Judiciary Committee did not lay 
these concerns to rest. If anything, they made them stronger.
  We should not seek to amend the Constitution in a way that would 
reduce its grandeur. Under our longstanding system of federalism, we 
should leave the regulation of marriage to the States and religious 
institutions and get to work on the real issues that Americans are 
facing and deserve our attention and action.
  As I stand here, there are Americans across our country out of work, 
languishing in failing schools, struggling to pay the month's bills, or 
worrying about their lack of health insurance. Instead of spending our 
limited time this session on a proposal that is destined to fail and 
will only divide Americans from each other, we should be addressing the 
issues that will make our Nation more secure and the future of our 
families brighter.
  I urge my colleagues to oppose this ill-advised and divisive 
constitutional amendment.
  I yield the floor.
  The PRESIDING OFFICER. The Senator from Texas.
  Mr. CORNYN. Mr. President, I think under the previous consent order 
we would now go to 30 minutes on this side and then over to the Senator 
from Illinois for the next 30 minutes. We may, in fact, depending on 
who shows up, try to divide our 30 minutes among several Senators. I 
ask unanimous consent that we be allowed to do so in case there is any 
doubt.
  The PRESIDING OFFICER. Without objection, it is so ordered.
  Mr. CORNYN. Mr. President, I am delighted that we are finally 
beginning to have a real debate on the floor of the Senate on the 
importance of preserving traditional marriage. Up until this point, I 
am sorry to say, we really hadn't had much of a debate because our 
attempts to raise this issue, starting on Friday, had been met mainly 
with silence from the other side. But we have had a number of 
Senators--Senators Boxer, Reid, now Feingold--who have spoken and 
stated their objections. I would like to respond briefly. I believe 
then that Mr. Inhofe, the Senator from Oklahoma, will be here. I will 
certainly turn to him.
  First of all, we are told by the distinguished Democratic whip that 
Republicans have raised a political issue. I would suggest to you that 
when judges in Massachusetts and elsewhere threaten to mandate same-sex 
marriage on the people of this country without the opportunity for the 
people of this country or their elected representatives to cast a vote 
or to have a voice in that decision, that is not a vote in favor of 
democratic government, one preserved by our Constitution that 
recognizes the sovereignty of a free people, not of a few life-tenured 
judges or perhaps judges who none of us have had a chance to vote on or 
to express any disapproval of in terms of judges from Massachusetts who 
have radically redefined the institution of marriage in that State.
  Contrary to the hopeful expressions by some of my colleagues and 
perhaps others in the media, this is not an issue that can just be 
confined to one State, the State of Massachusetts, because, in fact, 
same-sex couples have gone to that State and have taken advantage of 
this new law and then moved back to their States of residence, 46 
different States. And then, of course, we understand the process. And 
then a number of those have, in turn, filed lawsuits in their home 
States seeking to force legal recognition on their same-sex marriage 
that was conducted in Massachusetts in their home State.
  This is not an isolated event. This is part of a long-term litigation 
strategy. Indeed, we know that even as long ago as when the Defense of 
Marriage Act was passed by this body overwhelmingly--I believe it was 
85 Senators who voted in favor of it on a bipartisan basis--there were 
some Senators back then who, of course, didn't vote for it, such as the 
Senator from Wisconsin, as is certainly his privilege. But we know that 
others did not vote for it at the time, including Senator Kerry, who 
said at the time:

       DOMA is unconstitutional, unnecessary, and unprecedented. 
     This is an unconstitutional, unprecedented, unnecessary, and 
     meanspirited bill.

  At the same time, of course, 85 of his colleagues in this body on a 
bipartisan basis sought to express their confidence in the importance 
of preserving traditional marriage back then. Then, of course, there 
were other Senators who made the same expression.
  Legal scholars have for some time now, including Laurence Tribe from 
Harvard Law School, Cass Sunstein, and others, expressed their opinion 
as a legal matter that the Defense of Marriage Act is unconstitutional, 
and then we have, most recently, the most recent edition of the Harvard 
Law Review, which is entitled ``Litigating The Defense of Marriage Act, 
The Next Battleground For Same-Sex Marriage.'' This literally sets out 
a roadmap for any lawyer who wants to challenge the preservation of 
traditional marriage in their State or, indeed, in any State in the 
United States by seeking a judicial declaration in a court that the 
Federal Constitution mandates same-sex marriage.
  So this is not some political issue that we or the leadership on this 
side of the aisle dreamed up. This is a debate that has been raging for 
some time now, at least since 1996, when Senator Kerry, Senator 
Kennedy, and others expressed on the public record that they believed 
the Defense of Marriage Act was unconstitutional at the time. They were 
parroting the statements of legal scholars and others to the same 
effect.
  So this is, in my view, a question of whether we the people have a 
say. As Abraham Lincoln said, we are a government of the people, by the 
people, and for the people. But what our opponents on the other side of 
the aisle and on this issue would say is, look, we have four judges in 
Massachusetts who have laid down the law in Massachusetts, and there is 
really nothing you can do about it. The fact is, it has now been 
exported to 46 other States, and there are approximately 10 lawsuits 
presently pending to seek to force the recognition of those same-sex 
marriages in those States, and this is part of a national litigation 
strategy.
  I say to those who think we ought to sit on the sidelines and remain 
spectators and remain silent, we are not

[[Page 15318]]

going to remain silent, we are not going to stand still, nor did the 
Framers of our Constitution contemplate the people standing still when, 
by virtue of the passage of time and experience, or in this case when 
judges seek to amend the Constitution under the guise of 
interpretation, none of the Framers, no part of the Constitution 
contemplates that the people of this country should just remain silent.
  If we want a government of the people, by the people, and for the 
people, this is an important debate. I want to say something before I 
defer to the Senator from Oklahoma, who wants to speak, just by way of 
response--and I will reserve the rest of my remarks for the remaining 
time we have allotted in this 30-minute timeslot.
  The Senator from Nevada, the distinguished Democratic whip, has 
chastised this side of the aisle, the Republican majority leader, for 
refusing to accept their offer for an up-or-down vote on the Allard 
amendment. What he didn't tell you is they stipulated that it must be 
without any amendments being offered on the floor. In other words, 
their offer attempted to stifle debate and stifle the right of Senators 
to offer amendments. They know, as we all know, there are other 
amendments that have been discussed over the last year or so. I think 
if we want to have a full, fair, and honest debate, since there are 
concerns there wasn't adequate deliberation in the Judiciary Committee, 
this is the place to have it. We ought not to try to stifle debate or 
the right of any Senator to offer an appropriate amendment.
  At this point, I will reserve the remainder of our allotted time and 
ask that the Senator from Oklahoma be recognized.
  The PRESIDING OFFICER. The Senator from Oklahoma is recognized.
  Mr. INHOFE. I thank the Senator from Texas.
  Mr. President, I have been watching, with a great deal of interest, 
the debate that has been taking place. I took some time last night to 
get what I believe to be very salient quotes. One is by an Irish poet, 
William Yeats:

       I think a man and a woman should choose each other for 
     life, for the simple reason that a long life with all its 
     accidents is barely enough time for a man and a woman to 
     understand each other and . . . to understand is to love.

  I think there are several of us in this room, including the Presiding 
Officer, who understand very well what Dr. Yeats is talking about.
  The next one comes out of the Talmud, the Jewish oral interpretation 
of the Torah:

       A wife is the joy of a man's heart.

  Mark Twain said:

       After all these years, I see that I was mistaken about Eve 
     in the beginning; it is better to live outside the Garden 
     with her than inside it without her.

  Homer, the Greek philosopher, said:

       There is nothing nobler or more admirable than when two 
     people who see eye-to-eye keep house as man and wife, 
     confounding their enemies and delighting their friends.

  William Penn said:

       Between a man and his wife nothing ought to rule but love.

  Andrew Jackson said:

       Heaven will be no heaven to me if I do not meet my wife 
     there.

  Those things sound good and poetic. I happen to have been married for 
45 years. My wife and I have 20 kids and grandkids and it started just 
with us. We think about the tradition in this country and how it has 
been this way as long as we can remember.
  I have heard people say on this floor, when talking about this issue, 
that this perhaps should be a State issue. As a general rule, you will 
not find anybody who is a stronger supporter of State rights than I am. 
But this is a national issue. The definition of marriage is and has 
been a national issue.
  In the late 19th century, Congress would not admit Utah into the 
Union unless it abolished polygamy and committed to the common national 
definition of marriage as one man and one woman.
  In 1996, Congress passed a Defense of Marriage Act into law, which 
defines marriage as one man and one woman for the purposes of all 
Federal law.
  Another, and perhaps more compelling, argument that this should be 
handled on a Federal level is that people constantly travel and 
relocate across State lines throughout the Nation. Same-sex couples are 
already traveling across country to get married. As a result of this 
mobility, same-sex couples with marriage certificates will become 
entangled in the legal systems of other States in which they live. They 
will do business, buy and sell property, write wills, commit and suffer 
torts, go to the hospital, get divorced, and have custody battles over 
their children.
  A State-by-State approach to gay marriage will be a logistical and 
legal mess that will force the courts to intervene and require all 
States to recognize same-sex marriages. This is the only possible 
outcome.
  This issue needs to be addressed now. The definition of marriage must 
be addressed, and it must be addressed now. Activist lawyers and judges 
are working quickly through the courts to force same-sex marriage on 
our country.
  In June of 2003, the U.S. Supreme Court signaled its possible support 
for same-sex marriage when it struck down a sodomy ban in Texas. That 
was Lawrence v. Texas. I am sure the junior Senator from Texas is very 
familiar with that.
  Earlier this year, the Massachusetts Supreme Court ruled that same-
sex couples could marry, and that ruling went into effect on May 17. 
The State's high court's ruling clearly ignored tradition--even its own 
State legislature.
  In response to the courts ruling, the Massachusetts Senate drafted a 
``civil union'' bill specifically designed to satisfy the court's edict 
while preserving traditional marriage.
  Despite the fact that all legal rights and benefits were provided in 
the civil unions legislation, the court rejected this alternative 
legislation, insisting on redefining marriage.
  In his dissenting statement, Massachusetts Supreme Court Justice 
Sosman said:

       It is surely pertinent . . . to recognize that this 
     proffered change affects not just a load-bearing wall of our 
     social structure but the very cornerstone of that structure.
       The majority stripped the elected representatives of their 
     right to evaluate ``the consequences of that alteration, to 
     make sure that it can be done safely, without either 
     temporary or lasting damage to the structural integrity of 
     the entire edifice.''

  Even Massachusetts Gov. Mitt Romney, in his testimony on June 22, 
2004, before the Senate Judiciary Committee, stated:

       Marriage is not an evolving paradigm, as the court said, 
     but it 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 the people of 
     Massachusetts.
       We need an amendment that restores and protects our 
     societal definition of marriage, [and] blocks judges from 
     changing that definition . . . at this point, the only way to 
     reestablish the status quo . . . is to preserve the 
     definition of marriage in the federal Constitution before 
     courts redefine it out of existence.

  Not only has the Massachusetts court ruling affected that State, it 
has and will continue to open the floodgate of similar decisions by 
other State courts across the country.
  Lawsuits are already pending in 11 States to ask the courts to 
declare that traditional marriage laws are unconstitutional. Same-sex 
couples from at least 46 States have received marriage licenses in 
Massachusetts, California, and Oregon and have returned to their home 
States. Many of these couples will now sue to overturn their home 
State's marriage laws. There is already a lawsuit in Seattle to force 
the State to recognize same-sex marriage in Oregon.
  Unfortunately, the Federal Defense of Marriage Act, DOMA, does not 
protect States from lawsuits such as these. State and Federal courts 
are poised to strike DOMA down under the equal protection and due 
process clauses in the Constitution. This would essentially force 
recognition of same-sex marriages.
  Why protecting traditional marriage matters: Marriage is about much 
more than romantic love. I know from my experience. My wife Kay and I 
have been married for 45 years. We understand these things. For the 
purpose of society and our legal system, marriage is the ideal 
environment for raising children and thriving communities.

[[Page 15319]]

  Our laws protect marriage between a man and a woman, not because of 
love or romance, but because marriage provides a good, strong, stable 
environment for raising children and is good for society as a whole. 
The evidence of the benefits to children being raised by a mother and 
father is overwhelming.
  In societies where marriage has been redefined, potential parents 
become less likely to marry and out-of-wedlock births increase. This is 
because marriage loses its unique status in society as the institution 
where childbearing and parenting is centered. It becomes little more 
than an optional arrangement, not the presumptive locus of family life.
  According to a February article in the Weekly Standard by Stanley 
Kurtz:

       A majority of children in Sweden and Norway are born out of 
     wedlock.

  A majority, that is more than half of the children are born out of 
wedlock.
  He goes on to say:

       Sixty percent of first-born children in Denmark have 
     unmarried parents--not coincidentally, these countries have 
     had something close to full gay marriage for a decade or 
     more.
       In 1989, Denmark had legalized de facto gay marriage, and 
     Norway and Sweden followed in 1993 and 1994, respectively.

  Additionally, according to Barbara Dafoe Whitehead, codirector of the 
National Marriage Project at Rutgers, State University of New Jersey, 
in her testimony before the Senate Health, Education, Labor and 
Pensions Committee on April 28 of this year, marriage has many 
benefits. She is speaking clinically when she gives these evaluations.
  It can be a source of ``economic, educational, and social advantage 
for most children. Children from intact families are far less likely to 
be poor or to experience persistent economic insecurity. Estimates 
suggest that children experience a 70-percent drop in their household 
income in the immediate aftermath of divorce and, unless there is a 
remarriage, the income is still 40-45 percent lower 6 years later than 
for children from intact families.''
  Ms. Whitehead goes on to say:

       Children from intact married parent families are more 
     likely to stay in [and do better in] school.

  In fact, according to Patrick Fagan, a fellow at the Heritage 
Foundation, in his testimony before the Senate Subcommittee on Science, 
Technology, and Space on May 13 of this year:

       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--

  Some 30 percent or less.
  Ms. Whitehead also says:

       Marriage provides economies of scale, encourages 
     specialization and cooperation, provides access to work-
     related benefits such as retirement savings, pensions, and 
     life insurance, promotes saving, and generates help and 
     support from kin and community.
       On the verge of retirement, one study found married 
     couples' net worth is more than twice that in other 
     households.
       A study of retirement data from 1992 by Purdue University 
     sociologists found that individuals who are not continuously 
     married have significantly lower wealth than those who remain 
     married throughout the life course.

  That is significant because we have been talking about the emotional 
side. We have been talking about the things that I think are no-
brainers, that most of the American people, in spite of the arguments 
to the contrary, talk about. But there are economic reasons. There are 
reasons of prosperity and happiness that are being dealt with in this 
resolution.
  I have quotes from a number of Senators and conservatives. They have 
done such a good job, those who are in this Chamber. In listening, I 
have found a few points they said that are worth repeating.
  My colleague, Senator Allard from Colorado, believes our Founding 
Fathers never envisioned that we would be changing the very structure 
of marriage, that we would be changing this core structure of society. 
We are in danger of losing a several-thousand-year-old tradition, one 
that has been vital to the survival of civilization itself.
  This small group of activists and judicial elite, as my colleague 
from Kansas, Senator Brownback, said, ``do not have a right to redefine 
marriage and impose a radical social experiment on our entire 
society.''
  ``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.''
  This is an ``assault on the American family,'' as my colleague, 
Senator Cornyn, the junior Senator from Texas, said.
  And my colleague from Alabama, Senator Sessions, said:

       If there are not families to raise . . . children, who will 
     raise them? Who will do that responsibility? It will fall on 
     the State.

  This, to me, is one of the most troubling outcomes of the whole gay 
marriage issue. As my colleague from California, Senator Boxer, said, 
we have ``misplaced priorities'' in addressing this issue right now. I 
say to my colleague, I do not think our priorities are misplaced when 
we are looking at creating a whole new class of children from these gay 
marriages who could end up completely dependent on the State, on the 
taxpayers--the American people.
  I do not think our priorities are misplaced when we are concerned 
about following in the footsteps of countries where out-of-wedlock 
births have skyrocketed. And I do not think our priorities are misled 
when some activist, rogue judges and others are undermining the 
legislative process in taking away the voice of our elected officials.
  Additionally, several prominent, respected conservative voices in our 
country have spoken out against the idea of gay marriage and in support 
of the traditional definition.
  According to ``Focus on the Family,'' headed by Dr. James Dobson--I 
was just on his program a little while ago:

       Family is the fundamental building block of all human 
     civilizations.
       Marriage is the glue that holds it together. The health of 
     our culture, its citizens, and their children is intimately 
     linked to the health and well-being of marriage.

  Chuck Colson, a man who most people in this body know quite well, was 
the founder of Prison Fellowship. He has this to say about the prospect 
of gay marriage:

       The redefiners of marriage are working tirelessly. Their 
     agenda is to tear down traditional marriage and make it 
     meaningless by removing its distinctives.

  He goes on to say:

       Marriage, as an institution between a man and a woman, is 
     basically for procreation.
       Homosexual marriage, therefore, is an oxymoron. There is no 
     such thing. It is something else.
       It is two people coming together for recreation, not for 
     procreation. Procreation can only happen between a man and a 
     woman.
       Every society has recognized this, going back to the 
     beginning of recorded history. Societies recognize that it is 
     in their self-interest to preserve this institution and to 
     give it a distinct status under the law.
       Marriage is the institution that civilizes and propagates 
     the human race. It is where children are raised and learn the 
     ways of right and wrong. Their consciences are formed in the 
     family.

  Finally, the Reverend Billy Graham's son, Franklin Graham, was in my 
hometown of Tulsa a couple of weeks ago. He said:

       There is a real movement for same-sex marriage. We could 
     lose marriage in this country the way that we know it.

  That is really what this is all about. We can dance around it and try 
to cater to certain groups, but I find something that has served me 
well for a number of years when something like this comes up, and that 
is to go back to the law, go back to the Scriptures. In Genesis 2:18, 
21-24, God said:

       It is not good that man should be alone; I will make him a 
     helper comparable to him . . . and the Lord God caused a deep 
     sleep to fall on Adam, and he slept; and He took one of his 
     ribs, and closed up the flesh in its place. Then the rib 
     which the Lord God had taken from man He made into a woman, 
     and He brought her to the man. And Adam said, ``This is now 
     bone of my bones and flesh of my flesh. She shall be called 
     woman, because she was taken out of man.'' Therefore a man 
     shall leave his father and mother and be joined to his wife, 
     and they shall become one flesh.

  In Matthew 19:4-6, Jesus said:

       Have you not read that He who made them at the beginning 
     made them male and female, and for this reason a man shall 
     leave his father and mother and be joined to his

[[Page 15320]]

     wife, and the two shall become one flesh? So then, they are 
     no longer two but one flesh . . .

  The reason I read these two Scriptures is because they were quoted at 
a very significant event that took place 45 years ago. It was when my 
wife and I were married.
  I yield the floor.
  The PRESIDING OFFICER (Mr. Crapo). The Senator from Nevada.
  Mr. ENSIGN. Mr. President, how much time remains on our side?
  The PRESIDING OFFICER. There is 2 minutes remaining.
  Mr. ENZI. I ask unanimous consent that I be given an additional 3 
minutes for a total of 5 minutes.
  The PRESIDING OFFICER. Without objection, it is so ordered. The 
Senator from Nevada is recognized for 5 minutes.
  Mr. ENSIGN. Mr. President, I rise today to speak on a topic that is 
very important. That is the preservation of the most important 
structure in our society. I rise to speak on the topic of marriage and 
the need for the Federal Marriage Amendment. But before I do, I want to 
thank my good friend from Oregon, Senator Gordon Smith, for the speech 
he gave on this very topic last Friday. His speech was eloquent and his 
thoughts profound. For those who did not have the opportunity to see or 
hear the speech, I strongly encourage them to read it. I also want to 
thank the floor manager of this resolution, Senator Cornyn from the 
State of Texas, for his thoughtful commentary and his leadership on 
this issue. And so I thank both Senators.
  I have given a considerable amount of thought on the topic of the 
Federal Marriage Amendment over the last weeks and months. My thoughts 
have focused on what the meaning and purpose of marriage is. All words 
have meaning. The word marriage has meaning deep rooted in our culture. 
There are certain words that have such an important meaning that they 
invoke strong emotions within each of us. For me, marriage is one such 
word. The word marriage represents an institution with historically 
universal understanding. Its meaning is one that has been constant 
throughout time and across all cultures. I can think of no other word, 
and no other institution, that enjoys such a special status with such 
an important meaning.
  For me personally, I understand the importance that the presence of 
both a father and mother has in the life of a child. I understand this 
because, for a time, I was raised by a single mom. I do not, in any 
way, want to suggest that single parents are not doing their best to 
raise their children. As a single mom, my own mother did her very best 
to take care of me, my brother and my sister.
  Single parents are doing right by their children. Single parents, 
like my mom, deserve to be praised. But those circumstances are not the 
ideal in which to raise children. Marriage is that ideal.
  When I was nine, my mom met and married the man who is my dad. With 
their marriage, there was finally someone in our home who was a strong 
male role model for me and my brother. I finally had a positive example 
of what it meant to be a father and a husband. Someone I could look up 
to and someone I could emulate. My dad's presence in our house made an 
immediate impact on me in a way that my mother alone simply could not. 
His presence also impacted me in ways that has helped me love and care 
for my own wife and my own children.
  The presence of a mother and father in the life of a child is 
crucial. Mothers and fathers bring their own special qualities to their 
own relationship and to the approach they take to raise their children. 
It has been said that a boy will look to his mother as the type of 
woman he wants to marry and his father as the model for how to treat 
her. For that reason, and so many more children need both a father and 
mother. That is the universally recognized ideal on which marriage is 
based.
  Marriage recognizes the ideal of a father and mother living together 
to raise their children. Marriage is the ideal that is the cornerstone 
on which our society was founded. This Congress, and all previous 
Congresses, have enacted laws to further that ideal. In fact, in 1996, 
this Senate passed the Defense of Marriage Act by a vote of 85 to 14. 
The House of Representatives also passed DOMA overwhelmingly. My own 
State of Nevada has adopted a DOMA Amendment to our State constitution. 
As required by our State's constitution, this amendment was adopted two 
times by the voters of my State. So I would hope that no one in this 
body would take issue with the statement that marriage between one man 
and woman is the ideal. Congress overwhelmingly adopted legislation 
agreeing with that statement only 8 years ago.
  For those who say that the Constitution is so sacred that we cannot 
or should not adopt the Federal Marriage Amendment, I would simply make 
two points. First, marriage, and the sanctity of that institution, 
predates the American Constitution. It predates the founding of our 
Nation and even the landing at Plymouth Rock. Marriage, as a social 
institution, predates every other institution on which ordered society 
in America, and the world as a whole, has relied including even the 
church itself. Second, the Founding Fathers envisioned the possibility 
that future generations may need to amend the Constitution. In their 
wisdom they allowed the amendment process to begin either with Congress 
or with the States. So we are considering this amendment, in the manner 
contemplated by the Founding Fathers, which is to say consistent with 
the Constitution itself.
  It is with concern that I have read about how a few unelected judges 
and some locally elected government officials have taken steps to 
redefine marriage to fit their own agenda. It is not right to mold 
marriage to fit the desires of a few, against the wishes of so many, 
and to ignore the important role that marriage has played in our 
history.
  During the course of this debate, I have heard many people suggest 
that the Federal DOMA law, which I referenced earlier, is not under 
attack. And that an amendment is premature so long as DOMA is still 
law. But because of last year's Supreme Court decision in Lawrence v. 
Texas, many Constitutional scholars believe that Federal DOMA, and 
State DOMAs adopted in 41 other States, that defined marriage as 
between one man and one woman will most certainly be struck down.
  Judicial activism is a huge problem in America. The Constitution is a 
living document in that it can be amended by the process our Founders 
set up, but not by activist judges. So the question before us today is: 
Will the Constitution be adopted in the manner proscribed by that 
document or by unelected judges?
  It does not appear that this amendment will pass this year. In fact, 
it may take years to adopt this amendment. But it is critical to have 
this debate and vote here in Washington, DC so that the States can 
continue the debate and so that the people know exactly where each one 
of us stands on this issue.
  In the end, for a healthy society, we need to have a tolerant society 
but also a society which strives for the ideal. That ideal is for 
children to be raised by one father and one mother bonded by the 
institution of marriage.
  I yield the floor.
  The PRESIDING OFFICER. The time of the Senator from Texas has 
expired.
  The Senator from Illinois is now recognized for 30 minutes.
  Mr. DURBIN. Mr. President, for those who are witnessing this debate 
on the floor of the Senate, it is a historic moment. It is rare the 
Senate engages in a debate on the question of amending this document, 
the Constitution of the United States. There are so many things that 
divide us on the floor of the Senate, between Republicans and 
Democrats, but there is one thing we are united behind, and that is our 
oath of office. That oath of office is explicit. This, in part, is what 
it says. Each of us takes this oath. To the best of our ability we 
will:

     . . . preserve, protect and defend the Constitution of the 
     United States.


[[Page 15321]]


  Isn't it interesting that when this Constitution was written, our 
Founding Fathers wanted to make certain that whoever served as 
President, Vice President, Member of the House or Senate, would not 
swear their loyalty to the United States of America but would swear 
their loyalty to this document. You could not become a Member of this 
body unless you were prepared, under oath, to say you would preserve, 
protect, and defend the Constitution of the United States.
  The Founding Fathers understood the importance of this document they 
had written. They knew it embodied within its four corners the basic 
principles of America. It wasn't a dead document. It was a living 
document which could be changed. But I think the oath of office which 
each of us takes is a reminder of our solemn responsibility when it 
comes to this Constitution.
  We may propose amendments to laws, make motions on the floor, pass 
resolutions, make our speeches, but I am one who believes when it comes 
to this document we have a special responsibility. It is a 
responsibility which requires respect and humility--humility.
  Before this Senator from Illinois will propose a change in one word 
in this Constitution of the United States of America, I have to be 
convinced, I have to be absolutely sure it is essential--essential for 
this union to continue and essential for the rights and liberties of 
every American citizen.
  Oh, we debate bills back and forth. We change sentences, we change 
punctuation, we make wholesale changes in the law. But the laws come 
and go, as Members of the House and Senate come and go. This document 
endures.
  Over 11,000 times Members of the Congress have proposed changing this 
document. Over 11,000 times they have come to the floor of the House or 
the Senate and said: The Founding Fathers didn't get it right, they 
didn't consider this possibility. And over 11,000 different times, 
overwhelmingly, their suggestions have been rejected. Why? Because of 
the respect and the humility which each of us brings to this debate on 
a constitutional amendment.
  Today, those who are witnessing this debate are witnessing another 
attempt to amend the Constitution of the United States. How often has 
it been done? Since Thomas Jefferson's Bill of Rights--which originally 
proposed, I believe, had 12 amendments; only 10 were originally 
approved--we have only amended this document 17 times. One time we 
realized we made a mistake. We passed an amendment prohibiting the sale 
of liquor in the United States and a few years later we repealed it. 
But by and large, only 17 times in the course of the history of the 
United States of America has this Congress said this document is 
insufficient; this document does not meet the needs of America; this 
document must be changed.
  To those who are following this debate, and to my colleagues, I will 
tell them the proposed amendment before us today does not meet the 
test. It does not meet the requirement to say to those who founded this 
Nation and to all who carried on since that we need to pass this 
Federal marriage amendment. I believe it is plain wrong. It is wrong in 
three specifics.
  First, we are talking about the institution of marriage. 
Traditionally, marriage is defined by each and every State. One State 
establishes a certain age of eligibility. Another State will establish 
a certain blood test that may need to be taken. Another State will 
limit whether certain members of families can marry. All of these 
provisions and limitations on marriage are State and local 
responsibilities. Not once will you find in this Constitution of the 
United States the requirement that the Federal Government in Washington 
establish a standard for marriage in America. So what we are discussing 
today is a proposed amendment to the Constitution that is clearly 
outside of the purview and scope of this Constitution which we have 
sworn to preserve and defend.
  Second, there is no court ruling that brings us to this moment in 
this debate. It is not as if some Federal court or even a State court 
has said this Constitution requires that people of the same gender be 
allowed to marry. Not one single court in America has said that. So we 
come here today, the argument being made that we should preempt the 
possibility that at some time in the future some court will decide that 
in fact a marriage between people of the same gender in one State must 
be upheld in other States. There has never--repeat, never--been a case 
in any State or Federal court that says that. Yet we come to the floor 
of the Senate today as if the decision were handed down last week and 
we must stand up once and for all to preserve the right of marriage to 
be confined to an institution between a man and a woman. It is 
traditionally a State decision on what defines marriage. There is no 
controversy that brings us to the floor today.
  What is even worse, we come to this debate with this constitutional 
amendment which has been proposed, and we come to the floor to debate 
it without a single markup by the Senate Judiciary Committee to debate 
the language that is being proposed. Does that show respect for the 
Constitution? Does that show the appropriate humility which every 
Member of Congress should have? Of course it does not. Those who wrote 
this amendment were changing it by day. And now they want to change it 
again. They tell us the language given to us last week has to be 
changed again--maybe twice.
  Does this strike you as a work in progress? Does this strike you as 
the kind of language which should be put in this enduring document? Or 
does it strike you that we are taking a roller to a Rembrandt; that we 
are suggesting changes in our Constitution which have not met the test, 
the test that they address an issue of enduring significance and that 
the language crafted should stand beside our Bill of Rights?
  Today they argue: We need to make a few amendments in this language. 
We have been thinking it over this week.
  What is wrong with this picture? Shouldn't we take a step back and 
ask whether this is necessary? Ask whether, in fact, there is a court 
decision which requires it? Ask whether the language which we are 
proposing is language which will endure for generations to come?
  If we cannot answer each of those questions in the affirmative, then 
for goodness sakes why don't we move on? I will tell you why we are 
not. Because this debate is not about changing the Constitution--no. 
They say in politics for everything that is done, there is a good 
reason and a real reason. The good reason that is being given for this 
debate is to change the Constitution. That is not the real reason. The 
real reason is to change the subject of the President's election 
campaign because the Republican side of the aisle and those who are 
supporting this administration don't want to debate this Presidential 
election campaign on the issues most Americans identify as important in 
their lives. They don't want to debate the President's economic policy 
and the squeeze it has put on middle-income families. They don't want 
to debate what is happening in Iraq. They want to change the subject. 
They want to debate the future of marriage in America. That, to them, 
is more important and that is why we are here today. That is why there 
are statewide referenda in many battleground States like Missouri. And 
that is why we are hellbent to consider this amendment literally days 
before a certain political party coincidentally has its convention in 
the State of Massachusetts. That is what this is all about--changing 
the subject of the Presidential campaign.
  Oh, they tell us in the Judiciary Committee: Incidentally, we are 
going to bring the flag-burning amendment up again, too. We have had 
this amendment up before us at other times, but they are anxious for us 
to vote on this again before the election campaign.
  Do you know what I think we need? I don't think we need an amendment 
to the Constitution. I think we need a permanent law of the land that 
says there will be no constitutional amendment which will be proposed 
in a Presidential election year. Frankly, that will cause many of my 
colleagues to suppress the urge to use this Constitution as some sort 
of a political platform to try to win votes in an election.

[[Page 15322]]

  When you take a look at this particular amendment, you find, of 
course, that we are considering and taking up many days of debate 
rather than considering other issues we ought to be talking about here 
on the floor of the Senate.
  Do you recall the press conference last week when the Secretary of 
Homeland Security, Tom Ridge, told America of the danger of al-Qaida, a 
real danger; that they are plotting massive casualties to be brought on 
victims in America? We didn't know where or when, but he warned 
America, along with the Director of the FBI.
  Then you probably read yesterday speculation about whether we might 
have to postpone a Presidential election because of terrorism. And you 
think to yourself: For heaven's sake, I guess America is still in 
danger; and sadly we are. Then you might think to yourself: I certainly 
hope the men and women serving in the Senate are doing everything they 
can to make our Nation safer. That is a natural reaction, one which you 
might expect.
  All you have to do is look at the calendar of business of the Senate 
on the desk of every Senator and turn to the back page. You will find 
the status of appropriations bills that have not been considered by the 
Senate. Among the first two bills on the list is the Homeland Security 
appropriations bill--sitting on the calendar of the Senate for almost a 
month.
  We are warned by this administration that our security is in 
question, that America may be in danger, and we are told by the 
Republican leadership on the Senate floor that we don't have time to 
appropriate the money to make America safer. Instead, we are going to 
debate a constitutional amendment over an issue that has not even 
reached the point in any court in the land to require a constitutional 
amendment.
  That is just one of many issues that we could be considering.
  What have we done to try to reduce the squeeze on middle-income 
families from increased costs for health care, increased costs for 
prescription drugs, increased costs for gasoline, increased costs for 
college education? The answer is nothing. We are too busy debating a 
constitutional amendment about an issue that does not exist. It says 
something about the priorities of the leadership.
  We have not passed a budget resolution this year. We have 12 
appropriations bills, including the Department of Homeland Security, 
that have not been enacted. This is all about changing the subject.
  Paul Weyrich, CEO and chairman of the Free Congress Foundation, was 
very direct and blunt. He recommended that the President ``change the 
subject'' from Iraq to the Federal marriage amendment. It won't work 
because we pick up the newspaper every morning and we are reminded of 
the brave men and women in uniform who are literally risking their 
lives in Iraq. We cannot, we should not, and we will not forget them. 
And our attention will not be diverted from the danger to their lives 
and the prayers and hopes of their families. Yet that is the political 
agenda. That is what is before us.
  We have bypassed the Judiciary Committee. The suggestion has been 
that we take this amendment which has been proposed, change it one, 
two, three, or four times, and vote on it. But the changes may include 
adding other amendments to it. Is that possible? Could we put in more 
than one constitutional amendment? Of course. So we have turned into 
not a Senate but a constitutional convention. Is that what we are 
supposed to be doing, rather than appropriating money for homeland 
security, rather than addressing the timely issues that America's 
families are facing? I hope not.
  We have had one hearing on the text of a proposed amendment, and it 
was less than 24 hours after a new version had been written. This 
constitutional amendment is changing on a regular basis.
  I might say that Senator Cornyn of Texas, on Friday, came and spoke 
on the Senate floor. He said those who oppose this constitutional 
amendment, as I do, ``have chosen to boycott good faith desire to have 
an honest discussion about the issue.'' That was his quote. Senator 
Allard and others have said similar things.
  For the record, the Judiciary Committee, the committee of 
jurisdiction, has held four hearings on this issue. Senators Feingold, 
Kennedy, and I attended all four of those hearings. There was no 
boycott involved. We attended those hearings and asked questions about 
this issue. But there was never a markup. It was brought to the Senate 
floor with changes that are being made as we speak.
  In the past, Senator Hatch, now chairman of the Senate Judiciary 
Committee, rejected this. He said you can't bring a constitutional 
amendment to the floor without at least going through the Judiciary 
Committee and looking at the language and seeing if there are better 
words. Here is what Senator Hatch said in 1979:

       To bypass the committee is, I think, to denigrate the 
     committee process, especially when an amendment to the 
     Constitution of the United States of America, the most 
     important document in the history of the Nation, is involved.

  That is what Senator Hatch said 25 years ago. But that is not the 
process he has followed as chairman of the committee today. He has 
taken a much different path.
  This would be, incidentally, only the second time in history in which 
we would have enacted an amendment to the Constitution of the United 
States which would restrict the rights of American citizens.
  Historically, our amendment process has been to expand the rights and 
liberties of Americans, African Americans, women, and others to give 
them voice in the democratic process. This would be the second time in 
history in which we would restrict the rights of Americans. The other 
time, as I mentioned earlier, we said with the prohibition amendment 
that we would restrict the right to sell liquor and alcoholic beverages 
in America. That is the one other time we did it. We did it because of 
a temperance crusade brought on by some religious groups and others, 
and then realized a few years later that it was wrong. This would be 
only the second time in history when we would use the amendment process 
to restrict the rights of American citizens.
  We have no controversy at hand. The proposed amendment would be 
unique in that no constitutional amendment has been ratified in 
response to a State court ruling. There are four constitutional 
amendments that overrule Supreme Court decisions, but no constitutional 
amendment has ever been ratified in response to a nonexistent Supreme 
Court ruling. That is the case here.
  As I listened to those on the other side arguing earlier, I couldn't 
believe some of the things they said. The Senator from Texas said when 
judges in Massachusetts mandate same-sex marriage on our Nation, they 
export that marriage to other States. That is not a fact. There is 
nothing that has happened in the State of Massachusetts which has 
changed the marriage laws in Illinois, in Wyoming, in Nevada, in Texas. 
Nothing they have done changes the standard for marriage in my State.
  He went on to say that it is a question of whether the people shall 
have a voice in this process. I certainly believe the people of America 
should have a voice in the promulgation of law. But in this situation, 
the people of Massachusetts have a voice and have a process and have 
before them a constitutional amendment which will eliminate same-sex 
marriage but protect the rights of civil union. The people of 
Massachusetts will ultimately vote on that question as will their 
legislators.
  If you want to give the people of Massachusetts a voice in the 
process, they already have it. They are exercising it. There is no need 
for a constitutional amendment to either embellish it or reduce it in 
any way.
  Then, the Senator from Texas said we on the Democratic side were 
trying to stifle debate on this constitutional amendment by not 
allowing the Republicans to amend it two, three, four times, or more. 
We are not trying to stifle the debate. That is what this is all about. 
This exchange is about debate. But how can you debate a moving

[[Page 15323]]

target? How can you debate a proposal to the Constitution of the United 
States which may change 15 minutes from now, an hour from now, 
tomorrow, or Thursday? Shouldn't the Republican majority that brings 
this to the floor meet their solemn obligation to put language before 
us befitting the Constitution and not make this a construction project, 
a work in progress? That is what they want to do.
  The Senator from Nevada on the Republican side said earlier that 
judicial activists are taking away the power of the legislative branch. 
That is not a fact. What happened in Massachusetts happened under the 
Massachusetts Constitution, which is being amended by their legislature 
as required and submitted to the people of Massachusetts. If the people 
are to have the final voice on this issue in Massachusetts, that is 
exactly what is going to happen.
  The text of this proposed constitutional amendment, incidentally, is 
contradictory and unclear. There are some who oppose same-sex marriage 
but believe that civil unions should be allowed, as they are in many 
States, and as recognized by many private companies. But the language 
of this proposed Federal amendment, as it stands today--it may change--
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 a 
     union of a man and a woman.

  The operative words that should have been debated in the committee, 
and should be debated here are ``the legal incidents thereof.''
  What does it mean? Let me give a practical example. In the District 
of Columbia, they have enacted a law that if you have a partner you are 
living with of the same gender, you can declare that for purposes of 
being covered by your partner's health insurance. If one person in that 
household, two men or two women, is working, and one is not, the person 
working can claim the partner living at home as covered by the same 
health insurance policy just as it applies to men and women in 
marriage.
  What is wrong with that? What is so scandalous about that, that 
people desperate for health insurance coverage would have someone they 
love and share a home with be covered by health insurance?
  Yet this constitutional amendment would put that and other legal 
incidents of marriage, such as civil unions, in jeopardy.
  Let me note what has been said by Vice President Cheney. He was 
involved in a debate with Senator Lieberman 4 years ago in the Vice 
Presidential race, and this issue came up. Let me read what Vice 
President Cheney said when it came to the issue of defining marriage:

       It's really no one else's business in terms of trying to 
     regulate or prohibit behavior in that regard. . . . 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 is what Vice President Cheney said. I think he is right.
  Let me read what Vice President Cheney's wife said. I am sure it took 
courage for her to say it, but she did just this week. Lynne Cheney, 
the wife of Vice President Cheney:

       People should be free to enter into their relationships 
     that they choose. When it comes to conferring legal status on 
     relationships, that is a matter left to the states.

  I am sure that did not make the Vice President or his wife popular in 
the White House, maybe not among their Republican colleagues, but they 
are right. This is a decision which clearly should be left to the 
States.
  Today at lunch, the Senate Historian told us a story of Aaron Burr, a 
man who had served as Vice President and a man who left the Senate 
under extraordinary circumstances on March 1, 1805. This is what Aaron 
Burr said as he left the Senate about this Senate:

     . . . is a sanctuary; a citadel of law, of order, and of 
     liberty; and it is here--it is here, in this exalted refuge; 
     here, if anywhere, will resistance be made to the storms of 
     political phrenzy and the silent arts of corruption; and if 
     the Constitution be destined ever to perish by the 
     sacrilegious hands of the demagogue or the usurper, which God 
     avert, its expiring agonies will be witnessed on this floor.

  You don't hear many speeches like that on the floor of the Senate 
anymore, but Aaron Burr was correct. This is where the debate has to 
take place. This is where this debate on this constitutional amendment 
has to end. This is where Members of the Senate who have sworn to 
uphold, protect, and defend this Constitution of the United States will 
remind our colleagues to take a step back and show the respect and 
humility which this document deserves. To let this constitutional 
amendment process be taken captive by those who are trying to win votes 
in November is wrong. Whether it is done by Republicans or Democrats, 
it is just wrong. I think the American people understand that.
  There are strong feelings about a man and a woman that are shared by 
me and by others, but we also have strong feelings about this document, 
a document which I have taken an oath under God to uphold and defend. 
And I will do that by opposing this amendment.
  Mr. REID. Will the Senator yield?
  Mr. DURBIN. I am happy to yield.
  Mr. REID. Is the Senator aware, through the Chair I direct this 
question, in the State of Nevada, on two separate occasions, there was 
a vote by the people of the State of Nevada on whether they should 
include in the Nevada State Constitution a prohibition for gay 
marriage; is the Senator aware that took place?
  Mr. DURBIN. I was not aware.
  Mr. REID. I say to my friend, it has taken place. It was long and 
arduous. It took a period of years to accomplish.
  Would the Senator agree that the State of Nevada had the right to do 
that; whether they agree with the conclusion or not, didn't they have 
the right to do that?
  Mr. DURBIN. Certainly.
  I say to the Senator, that is the argument that has been made on the 
other side, that the people should be allowed to speak on the issue, 
and if that is the case, in Nevada, Illinois, or wherever it might be, 
then honoring that decision would seem to be consistent with the 
establishment of all America.
  Mr. REID. Through the Chair, I further question my friend, is the 
Senator aware in that debate over a period of years that lots and lots 
of money was spent in ads for and against the amendment, door-to-door 
activities took place, many more grassroots activities, editorials in 
newspapers, all in the State of Nevada? Whether you were for or against 
the ban on same-sex marriages, these activities took place in the State 
of Nevada; and now in the State of Nevada, in its constitution, there 
is a prohibition.
  The people of the State of Nevada had a right to do that; didn't 
they?
  Mr. DURBIN. I believe they do. I think the Senator is correct.
  Mr. REID. Is the Senator also aware that we have been told the reason 
we are not going to vote on this amendment, Resolution 40 now before 
the Senate, is that Senator Gordon Smith has another amendment he wants 
to offer and he does want a vote? Has the Senator been told that is the 
fact?
  Mr. DURBIN. Yes, I have.
  Mr. REID. Through the Chair, I direct this to the Senator from 
Illinois. From today's Congressional Daily, p.m. edition, it says: 
Senator Gordon Smith, Republican from Oregon, today denied that he has 
insisted the Senate vote on his alternative constitutional amendment 
banning gay marriage, telling reporters he favors Minority Leader 
Daschle's proposal to vote up or down on the underlying amendment 
sponsored by Wayne Allard, Republican from Colorado.
  Is the Senator from Illinois aware that Senator Daschle has requested 
on more than one occasion that we have an up-or-down vote on the 
resolution that is now before this Senate, that we have all been 
studying and doing our best to understand, that we should vote up or 
down on this? Does the Senator agree that is what we should do?
  Mr. DURBIN. Yes, I do. Let's bring this to a vote. The sooner, the 
better.
  Mr. REID. The Senator is aware, however, is he not, as stated by the 
majority, this is a work in progress? They, obviously, are not sure 
what

[[Page 15324]]

they want to vote on. Or is it just a political issue and they want to 
vote on nothing, they want to have another class action where they had 
victory in their grasp but they did not want to work on the substance; 
they wanted to maintain a political issue that Democrats were 
obstructing, which we were not? Is the Senator aware, it could be the 
same situation?
  Mr. DURBIN. I say there is a striking similarity. It appears they 
want to vote more than they want an amendment. Let's be honest about 
what it is about. They want to put some Senators on the spot. Trust me, 
the ads will be running, if they have not started already, in States 
across the Nation. If you oppose this constitutional amendment, they 
will say you are against traditional marriage. Virtually every one of 
our colleagues on both sides of the aisle, for that matter, support 
traditional marriage between a man and a woman.
  I have been married 37 years, and I think the Senator from Nevada may 
have been married longer. I respect this institution and have committed 
my life to it with my wife. I think we all understand that. But 
understand, as well, a ``no'' vote on this amendment will be used for 
political purposes to change the subject of the election campaign.
  I say to the Senator from Nevada, as my time is closing, there is one 
point I would like to make. Things have changed in my life experience, 
and in many others', over the time I have been in the Congress and even 
before. There was a time when, if there were gay members of a family, 
people just did not talk about it. No reference was made to it; very 
little was said about it. It was the aunt or uncle who never got 
married and no one has talked about it.
  That is changing in families across America. People have had the 
courage to come forward and say: I have a different sexual orientation. 
For some reason, God has made me with a different nature. I think more 
and more families are accepting of that fact, as they should be. I 
don't know what God's plan was in bringing a man or woman to this Earth 
with a different sexual orientation, but in many cases they have.
  All we have said, those Members on our side, is though we may not 
support gay marriage or marriage of the same sex, we ask for tolerance 
and understanding.
  The phone calls I have been receiving in my office have been phone 
calls generated by people who sincerely support this amendment and many 
who have some different agenda. It is, unfortunately, a very strident 
and hateful agenda. I hope that whatever the outcome of this amendment, 
we will say to the American people: Be tolerant; be understanding. Some 
people are different but they are our family. They are our neighbors. 
They are our fellow Americans.
  This proposed constitutional amendment is divisive and unnecessary, 
and contains many ambiguities and unresolved issues that have not been 
examined or considered by the Senate Judiciary Committee.
  We have less than 30 legislative days left this year. There already 
are more pressing issues than we could possibly address in that short 
time, without spending this week on a proposed constitutional amendment 
that even its supporters acknowledge does not have the votes to 
succeed.
  In light of Secretary Ridge's announcement last week, we should be 
focusing our attention on homeland security, including port and rail 
security.
  We must address the everyday needs and concerns of American citizens, 
especially those being squeezed in the middle class.
  Since President George W. Bush has come to office, average weekly 
earnings have risen only 1 percent, while gas prices have risen 25 
percent; college tuition has risen 28 percent; and family health care 
premiums have skyrocketed by 36 percent.
  Unfortunately, this Senate has ignored these concerns and has done 
nothing to increase wages. For example, we have not increased the 
minimum wage in almost 7 years, and the benefit of that increase has 
been completely erased by inflation.
  Even worse, unless Congress acts to restrict the President's proposed 
overtime regulations before our August recess, those regulations will 
slash the paychecks for thousands of Americans currently receiving 
overtime compensation by 25 percent.
  Finally, we still have not passed a budget resolution this year and 
have 12 appropriations bills that must be enacted.
  So why are we debating this constitutional amendment instead of 
addressing these more pressing issues?
  I suggest that there is an effort here to try to divert American 
families from their real concerns.
  In fact, this is a strategy that was advocated by Paul Weyrich, CEO 
and chairman of the Free Congress Foundation, who recommended that the 
President ``change the subject'' from Iraq to the Federal Marriage 
Amendment.
  We must not allow for such politicization of our Constitution--our 
Nation's most sacred document. That is why I believe we must ban the 
proposal of constitutional amendments in a Presidential election year--
certainly within 6 months of an election.
  By considering this issue outside of Presidential election years, we 
may be better able to consider the implications of this proposal 
without added political pressures. This may be one reason why only 3 of 
the 27 amendments to our Constitution have been passed by Congress in 
Presidential election years.
  Of course, I do not mean to imply that those who support this 
amendment have only political motives. Some of my colleagues on the 
other side of the aisle sincerely believe that no issue is more 
important than this one.
  However, the Judiciary Committee simply has not given this proposed 
constitutional amendment the thorough and measured consideration worthy 
of a possible change to our constitution--certainly not if one believes 
this is the most important issue facing our society today.
  During the 108th Congress, the Senate Judiciary Committee has held 
hearings on four proposed constitutional amendments: victims rights, 
flag desecration, the continuity of Congress, and this one.
  Three of those proposed amendments have been debated and marked up by 
the Constitution Subcommittee, following the long-standing tradition of 
our committee. The amendment today is the only one that bypassed this 
traditional consideration.
  It is ironic that the victims' rights and flag desecration amendments 
have followed the committee's traditional process, even though both 
have been considered by the Senate in the past, while this proposed 
amendment--which has never been considered by the Senate before--
bypassed the full committee and subcommittee markups and barely even 
had a hearing.
  Although the Judiciary Committee and Constitution Subcommittee have 
held four hearings on the issue of same-sex marriage, only one hearing 
was on the text of a proposed constitutional amendment--and that 
hearing was held less than 24 hours after this new version of the 
proposed amendment was introduced.
  Furthermore, unlike our committee's hearings on the victims' rights 
amendment and flag discretion amendment, the only hearing on the text 
of this proposed amendment did not have a representative from the 
Department of Justice to share the administration's views.
  On the issue of hearings, before I go further, I would like to 
respond to Senator Cornyn, who on Friday said that in committee 
hearings on this issue, Senators who oppose this constitutional 
amendment ``have chosen to boycott a good-faith desire to have an 
honest discussion about this issue.'' Senator Allard and others have 
made similar comments.
  For the record, the Judiciary Committee--as the committee of 
jurisdiction--has held four hearings on this issue. Senators Feingold, 
Kennedy, and I attended all four, and at each one, Democratic Senators 
outnumbered Republican Senators.

[[Page 15325]]

  This is hardly evidence of a refusal to engage in an honest 
discussion. In fact, just the opposite is true: We are asking for a 
full and thorough debate--but in the committee of jurisdiction, where 
such consideration is not only appropriate, but necessary, before we 
debate this proposal on the Senate floor.
  This request is the same as the one made by Senator Hatch in 1979, 
when a constitutional amendment regarding the direct election of the 
President and Vice President bypassed the Judiciary Committee and was 
debated on the floor.
  In that debate, Senator Hatch, then ranking member of the 
Constitution Subcommittee, said:

       To bypass the committee is, I think, to denigrate the 
     committee process, especially when an amendment to the 
     Constitution of the United States of America, the most 
     important document in the history of the Nation, is involved.

  Senator Hatch's argument prevailed, and the proposed constitutional 
amendment was referred to the Judiciary Committee by unanimous consent.
  Unfortunately, Senator Hatch has taken a different path with this 
proposed constitutional amendment, which is only the second 
constitutional amendment in more than a decade to be debated on the 
Senate floor after being placed directly on the Calendar without 
committee referral or report.
  I believe anything less than full consideration and debate by the 
Judiciary Committee not only would denigrate the committee process, but 
also would be a disservice to those who sincerely believe this is the 
most important issue facing our country. Without such examination, many 
issues in the proposal before us today will remain unresolved and 
unclear.
  The most important issue we must resolve is whether a constitutional 
amendment regarding marriage is necessary.
  I am aware that Article V of the Constitution provides for 
amendments, and I agree that the Constitution is a living document.
  However, as James Madison wrote in The Federalist No. 49, the 
Constitution should be amended only on ``great and extraordinary 
occasions.''
  Our Nation has heeded that advice, and although there have been more 
than 11,000 proposed constitutional amendments since 1789, we have 
amended our Constitution only 27 times, including the adoption of the 
Bill of Rights in 1791.
  We must continue to approach constitutional amendments with great 
humility and respect. To do otherwise would be to take a roller to a 
Rembrandt.
  The last time Congress submitted a constitutional amendment that was 
ratified by the States was more than 30 years ago, when the voting age 
was lowered to 18. That amendment was appropriate because it followed 
the principle of six other constitutional amendments that expanded 
voting rights.
  By contrast, the proposed amendment we are considering today would be 
the first constitutional amendment to restrict the rights of 
individuals since the 18th Amendment regarding Prohibition was ratified 
in 1919. Fourteen years later, that amendment was repealed.
  This proposed amendment also would be unique in that no 
constitutional amendment has been ratified in response to a State court 
ruling.
  Furthermore, although there are four constitutional amendments that 
overruled Supreme Court decisions, no constitutional amendment has been 
ratified in response to a non-existent Supreme Court ruling. In other 
words, this proposal is a solution in search of a problem.
  In 1996--another Presidential election year--Congress passed the 
Defense of Marriage Act, under which no State can force another State 
to recognize the marriages of same-sex couples. In other words, each 
State has its own power to define marriage.
  In the 8 years since DOMA was passed, it has never been successfully 
challenged. Although many have speculated that it may be 
unconstitutional, not a single Federal judge in this country has 
indicated that DOMA is unconstitutional or unlawful in any way, shape, 
or form. DOMA is still good law.
  Our country now has a preemptive foreign policy. I do not think we 
should have a preemptive Constitution. This proposed amendment would 
preempt the possibility that the Defense of Marriage Act will be found 
unconstitutional. That is premature and therefore inappropriate for an 
amendment to our Constitution.
  The concerns I have raised thus far are reason enough to oppose this 
constitutional amendment. However, I have not even discussed the text 
of the proposal itself.
  This constitutional amendment States the following:
  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.
  These two sentences are contradictory. The first sentence states that 
marriage must be between a man and a woman. But the second sentence 
suggests that marriage other than between a man and a woman would be 
permissible as long as that recognition occurred through a statute, 
rather than constitutional means.
  Which is it? Does this proposed constitutional amendment permit 
States to enact laws that would allow marriage to consist of the union 
of same-sex couples? If so, the first sentence must be modified. If 
not, the language in the second sentence must be more explicit to 
reflect the fact that this constitutional amendment would take away the 
right of States to define marriage within their borders.
  Furthermore, the overall intent and scope of the first sentence also 
are unclear. At first, this language seems straightforward enough. 
However, there are at least two ambiguities regarding this sentence.
  First, Representative Marilyn Musgrave, the House sponsor of this 
proposed constitutional amendment has stated the following:

       In summary, the first sentence of the FMA is designed to 
     ensure that no governmental entity . . . at any level of 
     government . . . shall have power to alter the definition of 
     marriage so that it is other than a union of one man and one 
     woman.

  However, as Representative Bob Barr noted in his testimony before the 
Judiciary Committee, the scope of this first sentence is not limited to 
government actors. According to Representative Barr, this sentence 
``appears to bind everyone in the United States to one definition of 
marriage.''
  As a result, religions that marry couples of the same sex in 
religious ceremonies may be barred from doing so. This blurs the line 
between church and State and threatens the Free Exercise Clause of the 
First Amendment.
  While I take the sponsor at her word that this is not her intention, 
the language again is ambiguous and must be clarified.
  Secondly, it is uncertain whether arrangements such as civil unions 
and domestic partnerships could exist at all under this first sentence 
of the Federal Marriage Amendment.
  Although Senator Allard and Representative Musgrave have stated that 
this sentence should not apply to civil unions or domestic 
partnerships, lawsuits have been brought in California and Pennsylvania 
that challenge domestic partnership laws based on the States' 
definition of marriage as being between a man and woman.
  Dennis Archer, president of the American Bar Association, agrees that 
there is ambiguity and sent a letter to the Senate which States the 
following:

       Despite the claims of the resolution's authors, it is 
     unclear whether a State would be prohibited from passing laws 
     permitting civil unions or domestic partnerships and 
     providing State-conferred benefits to the couples involved.

  Based on these lawsuits and the ABA's opinion, the language of this 
amendment must be more explicit regarding whether civil unions and 
domestic partnerships could exist.
  The second sentence also is full of ambiguity and undefined terms.
  For example, what does the term ``legal incidents thereof'' entail?

[[Page 15326]]

  I asked Professor Phyllis Bossin, who is Chair of the American Bar 
Association Family Law Section and who testified before the Judiciary 
Committee on behalf of the American Bar Association, what this phrase 
meant.
  She said there were hundreds of such rights and responsibilities and 
provided a list of dozens of them, including the following: the right 
to visit in a hospital; the ability to authorize medical treatment; 
family health insurance; the ability to consent to organ donation; 
eligibility for life or disability insurance; interstate succession, 
which is when a spouse dies without a will; the right to adopt; 
domestic violence laws; the right to seek compensation for wrongful 
death; and the ability to file joint petitions to immigrate.
  I ask unanimous consent that Professor Bossin's list of selected 
legal incidents of marriage be submitted for the Record.
  There being no objection, the material was ordered to be printed in 
the Record, as follows:

Response of Phyllis G. Bossin on Behalf of the American Bar Association 
              to Questions From Senator Richard J. Durbin


 a proposed constitutional amendment to preserve traditional marriage, 
                             march 23, 2004

       (1) The Federal Marriage Amendment (S.J. Res. 30) states 
     the following: ``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.''
       (a) What does the phrase ``legal incidents'' of marriage 
     mean?
       Answer: ``Legal incidents of marriage'' are those rights 
     that exist as a matter of law by virtue of the marital 
     relationship itself. Among the hundreds of such rights and 
     responsibilities, some are:
       (1) Family law: (a) Distribution of property upon divorce 
     (particularly marital or community property); (b) Right to 
     seek spousal support (alimony, maintenance); (c) Right to 
     seek custody, visitation, parenting time; (d) Automatic 
     presumption of parentage for children born during marriage; 
     (e) Right to adopt; (f) Application of common law marriage 
     (in states that recognize common law marriage; (g) Right to 
     enter into prenuptial agreements; (h) Right to change name at 
     time of marriage; (i) Domestic violence laws (including 
     restraining orders and right to occupy home); (j) Duty to 
     support spouse during marriage; (k) Liability for family 
     expense; (l) Automatic coverage of spouse under most auto 
     policies; (m) Right to seek divorce; (n) Right to annulment; 
     and (o) Right to seek/receive child support.
       (2) Taxation: (a) Right to file jointly; (b) Tax rates; (c) 
     Exemptions; and (d) Transfer of property between partners 
     without tax consequences (gift or estate tax).
       (3) Health Care Law: (a) Surrogate decision making 
     (authorizing treatment or withdrawal of treatment); (b) 
     Access to medical records; (c) Right to visit in hospital; 
     (d) Consent to organ donation; (e) Consent to autopsy; (f) 
     Right to make funeral arrangements or dispose of remains; and 
     (g) Family health insurance, including rights under COBRA.
       (4) Probate: (a) Intestate succession (rights to property 
     when one spouse dies without a will); (b) Protection from 
     being disinherited (right to challenge will or elect to take 
     against the will); and (c) Preferential status to be named 
     guardian or executor/administrator.
       (5) Torts: (a) Right to seek compensation for wrongful 
     death and emotional distress; and (b) Right to seek 
     compensation for loss of consortium.
       (6) Government Benefits and Programs: (a) Survivor benefits 
     (Social Security); (b) Military benefits (survivor, housing, 
     health care, PX); (c) Eligibility (and consideration of 
     family income) for welfare benefits; (d) Disqualification 
     from programs because of status of family member; and (e) 
     Disclosure requirements for public officials (and their 
     family members).
       (7) Private Sector benefits: Labor Law: (a) Family Health 
     insurance, including rights under COBRA; (b) Eligibility for 
     life insurance (such as group coverage for spouses); (c) 
     Eligibility for disability insurance; (d) Right to take sick 
     leave to care for seriously ill spouse; (e) Qualified 
     Domestic Relations Orders (to divide pension benefits upon 
     divorce between spouses); (f) Ability to roll over spouse's 
     401(K) or other retirement accounts and tax deferral on 
     income distributed by deceased spouse; (g) Discrimination 
     based on marital status; and (h) Eligibility for family 
     memberships and discounts.
       (8) Real Estate: (a) Eligibility for tenancy by the 
     entirety (traditionally only available to husbands and wives, 
     a form of tenancy in which the joint ownership and right of 
     survivorship generally cannot be eliminated as a result of 
     one spouse transferring his or her interest to the other); 
     (b) Need for spouse's approval for real estate transaction; 
     (c) Dower rights; (d) Homestead rights; and (e) Rent control 
     protections, where applicable.
       (9) Bankruptcy: (a) Joint filing.
       (10) Immigration: (a) Joint petitions to immigrate; and (b) 
     Preferred status for spouses or family members (immigrating 
     separately).
       (11) Criminal Law: (a) Privilege not to testify.
       (12) Miscellaneous: (a) Benefits and rules pertaining to 
     family farm; (b) Right to request and obtain absentee ballot; 
     (c) Consideration of family income for purpose of student aid 
     eligibility; (d) Access to campus housing for married 
     students; and (e) Economic disclosure requirements of public 
     officials (and spouse and family members).

  Mr. DURBIN. Under the Federal Marriage Amendment, none of these legal 
incidents could be provided by Federal or State courts. For example, 
Professor Bossin cited a California trial court ruling that the State 
constitution requires a partner in a same-sex union be allowed to sue 
for the wrongful death of her partner. This proposed constitutional 
amendment would preclude such a finding by a court.
  This amendment also would have prohibited Vermont from establishing 
civil unions, because a court had ruled that the law to create such 
relationships was constitutionally required.
  These examples go far beyond the scope of ``marriage,'' but they do 
not tell even half of the story: Under the Federal Marriage Amendment, 
all State and Federal laws that provide any of these ``legal incidents 
of marriage'' could be struck down.
  Senator Allard and others who support this amendment argue that it 
would allow State legislatures to provide the legal incidents of 
marriage through legislation, and that this amendment only constrains 
courts. However, a more critical analysis--which, again, should have 
been done at the committee level--demonstrates that this simply is not 
the case. For example, Professor Bossin has stated that the right to 
adopt is a legal incident of marriage. What if the Pennsylvania State 
legislature enacts a law to allow same-sex couples to adopt, and 
someone challenges the constitutionality of that law?
  Under the second sentence of the proposed Federal Marriage Amendment, 
neither the State constitution nor Federal constitution shall be 
construed to require that the right to adopt--as a legal incident of 
marriage--be conferred upon a same-sex couple. Therefore, the court 
would have no grounds on which to uphold the constitutionality of this 
law, and the law would be struck down.
  The possibility that even laws conferring the legal incidents of 
marriage could be invalidated raises serious questions about the intent 
and practical effects of the Federal Marriage Amendment.
  This proposed constitutional amendment also undermines the democratic 
process regarding State constitutional amendments. In Massachusetts, 
the proposed State constitutional amendment that may be on the ballot 
in 2006 would define marriage as the union of one man and one woman, 
while simultaneously establishing civil unions for same-sex couples 
with ``entirely the same benefits, protections, rights, privileges, and 
obligations that are afforded to persons [who are] married.''
  However, under the plain reading of this proposed Federal 
constitutional amendment, the Massachusetts State constitution cannot 
be construed to require the legal incidents of marriage to be conferred 
to same-sex couples. In other words, even if the people of 
Massachusetts voted to ratify this State constitutional amendment, the 
second part of that amendment--the part that establishes civil unions--
would be void because of the Federal Marriage Amendment.
  Furthermore, because of the first sentence of the Federal Marriage 
Amendment, under no circumstance could the people or the State 
legislature define marriage as other than between a man and a woman. 
How, then, does the Federal Marriage Amendment achieve its goal of 
advancing the spirit and principles of democracy.
  Finally, I believe that words should not be added or deleted from our 
Constitution or from proposed constitutional amendments in a careless 
manner. Therefore, I would like to know why the original version of 
this proposal was modified by removing the

[[Page 15327]]

reference to ``groups.'' The first version of the Federal Marriage 
Amendment, S.J. Res. 26, stated that marital status or the legal 
incidents thereof would not be conferred upon ``unmarried couples or 
groups.''
  The current version states that marriage or the legal incidents 
thereof shall not be conferred upon ``any union other than the union of 
a man and a woman.'' It appears to me this change was made because we 
are still struggling in some parts of our Nation with the idea of 
polygamy. Professor Bossin agrees that the current version of the 
proposed constitutional amendment does not explicitly prohibit 
polygamy, because polygamists enter into the union of a man and a 
woman--they simply do it multiple times.
  Was it in fact the intent of the sponsors to leave the door open for 
polygamy? If so, why should polygamous groups be treated differently 
from same-sex couples? If not, why was the reference to ``groups'' 
deleted from the original version?
  In addition to expressing my serious procedural and substantive 
concerns, I would like to address some of the arguments in support of 
this proposed constitutional amendment.
  First, I have heard many Senators argue that this constitutional 
amendment is necessary to provide the American people with a voice and 
to protect marriage from so-called activist judges. As I already have 
noted, this proposed constitutional amendment actually undermines 
democracy by removing the power of the people and their elected 
representatives to define marriage in their States, to provide for 
civil unions in their State constitutions, or even to enact legislation 
to provide the legal incidents of marriage.
  I also disagree that democracy is pitted against so-called judicial 
activism. As University of Colorado constitutional law professor 
Richard Collins said, judicial activism is ``more of an insult than a 
philosophy.''
  To argue that judicial activism is contrary to democracy is to 
suggest that a case like Brown v. Board of Education did not promote 
democracy in America. That was clearly an activist court, which took 
control of an issue that Congress and the President refused to address: 
discrimination in our public schools.
  In Brown v. Board of Education, an activist Supreme Court said we are 
going to give equal opportunity to education across America. Doesn't 
that further democracy? When we celebrated the 50th anniversary of this 
decision earlier this year, did anyone argue that it didn't?
  The same would be said of Griswold v. Connecticut, in which the 
Supreme Court said that families had the right to decide their own 
family planning and that the State of Connecticut could not dictate to 
them what family planning was allowed. It was a matter of privacy in 
family decisions. Was this an activist court in derogation of democracy 
that extended to these families and individuals their right to privacy?
  In Loving v. Virginia, the Supreme Court said that a ban on 
interracial marriage was improper. Even though at the time, only 20 
percent of the American people approved of such marriages, was that 
decision contrary to democracy or did it promote democracy?
  Time and time again, judicial activism has promoted democracy. Of 
course, we must take care that the courts do not go too far. But to 
suggest that a constitutional amendment is necessary in this case 
simply because it was a court ruling--incidentally, by a court that 
consists of six Republican appointees and only one Democratic 
appointee--is controverted by the obvious legal precedent.
  I also have heard many Senators argue that this constitutional 
amendment is necessary to safeguard the best environment for raising 
children. I agree that children raised by two parents are, in general, 
better off than children raised by a single parent. Many studies 
demonstrate this. But studies also demonstrate something else.
  In 2002, the American Academy of Pediatrics--the largest pediatric 
organization in America--issued a report that Stated the following:

       [T]he weight of evidence gathered during several decades 
     using diverse samples and methodologies is persuasive in 
     demonstrating that there is no systematic difference between 
     gay and nongay parents in emotional health, parenting skills, 
     and attitudes toward parenting. No data have pointed to any 
     risk to children as a result of growing up in a family with 
     one or more gay parents.

  Dr. Ellen Perrin, a professor of pediatrics at Tufts-New England 
Medical Center, who is considered to be the Nation's foremost expert on 
children raised by same-sex couples, has studied same-sex couples and 
concluded the following:

       What we know for sure is that children thrive better in 
     families that include two loving, responsible, and committed 
     parents. We also know that conscientious and nurturing 
     adults, whether they are men or women, heterosexual or 
     homosexual, can be excellent parents. We have a lot of 
     research as well as clinical experience that provide evidence 
     for this fact.

  This evidence is based on our Nation's experience with gay adoption. 
Every State except Florida allows gay people to adopt.
  Some States, including my home State of Illinois, allow same-sex 
couples to jointly petition for adoption. Many others allow for second 
parent adoptions, a legal procedure which allows a same-sex co-parent 
to adopt his or her partner's child. These States have recognized that 
same-sex couples can step into the lives of adopted children and 
provide loving and supportive families.
  Under this proposed constitutional amendment, it would no longer be 
possible for State courts to interpret their constitutions to allow 
same-sex couples to adopt. Same-sex couples only would be allowed to 
adopt if explicitly permitted by State law--and as I have noted 
earlier, that State law could be challenged as unconstitutional and 
likely would be struck down.
  Would that safeguard the best environment for these children? If this 
Senate is interested in the best environment for our children, we 
should fully fund No Child Left Behind, to provide all children with an 
educational opportunity and to fulfill the promise of Brown v. Board of 
Education.
  We also should make college tuition more affordable, and we should 
provide families with affordable health care.
  To conclude, I believe the definition of ``traditional marriage'' is 
an evolving one. One hundred and fifty years ago, ``traditional 
marriage'' in America did not include the ability of African American 
slaves to marry.
  One hundred years ago, ``traditional marriage'' in some Western 
States did not include the ability of Asian Americans to marry. Just 40 
years ago, ``traditional marriage'' in many States did not include the 
ability of African Americans to marry whites.
  I understand that many supporters of this proposed amendment believe 
that the situation we face today is a fundamentally different one--that 
we must amend our Constitution to support the sanctity of marriage.
  However, the sanctity of marriage is about the religious context of 
marriage, not the legality of it. We must be careful to separate the 
two.
  Nothing in the Massachusetts Supreme Court ruling requires a church 
to conduct or to consecrate a same-sex union. On the other hand, if 
this proposed constitutional amendment were ratified, certain religious 
beliefs regarding the sanctity of marriage would be enshrined in our 
Constitution. This would go beyond the question of legality into 
sanctity, and I believe that we must maintain the bright line between 
the two that our Framers intended.
  As one of my colleagues has said, ``I support the sanctity of 
marriage, but I also support the sanctity of the Constitution.'' 
Therefore, I urge my colleagues to reject this motion to proceed to a 
constitutional amendment that even the Republican leadership concedes 
is not ready for prime time.
  Why else would they object to our unanimous consent request to have a 
vote on this resolution, without amendments?
  The Republican leadership instead would prefer that we make it up as 
we go along, with one, if not two, amendments here on the Senate 
floor--

[[Page 15328]]

amendments that could have been offered in a Constitution Subcommittee 
markup or in a full committee markup, had those not both been bypassed.
  We are being asked to tinker with the words of our Nation's 
Constitution on the Senate floor, without even the benefit of committee 
analysis on the impact of these amendments. Unfortunately, this is not 
the first time we have considered a constitutional amendment on the 
Senate floor that was a work in progress, with the sponsors trying to 
make changes in the midst of a floor debate.
  During the 106th Congress, sponsors of the victims' rights amendment 
tried to make modifications to that proposal during the floor debate, 
and ultimately, the motion to proceed to that constitutional amendment 
was withdrawn. I believe that is the course we should follow here 
today. We either should vote on this resolution without amendments or 
withdraw this motion to proceed. If this motion is not withdrawn, I 
urge my colleagues to vote against it.
  The PRESIDING OFFICER. The Senator from Nevada.
  Mr. REID. Mr. President, to try and work out some housekeeping 
aspects of what we are doing today, under the order that was entered 
last evening, we are to be here until 8 o'clock with the time evenly 
divided. I ask the Chair how much time remains for the minority and the 
majority.
  The PRESIDING OFFICER. The minority has 109 minutes, and the majority 
has 141 minutes.
  Mr. REID. The minority has 109 minutes?
  The PRESIDING OFFICER. Yes.
  Mr. REID. I say to my friend, the distinguished Senator from Texas, I 
would appreciate his making contact with the majority leader at the 
nearest possible time. We have people who have requested time on our 
side of about 140 minutes. That doesn't work under the 109 minutes. So 
it would be my thinking that maybe we may need a little more time 
tomorrow to continue. I know we have cloture to take place tomorrow. 
The majority leader wanted ample time to debate. The Senator from 
Pennsylvania was on the floor yesterday and was concerned that there 
was not enough talk on our side of the aisle. I think we have taken 
care of that today. But if maybe he could check with his leadership to 
find out if we could stop at a reasonable hour tonight and then maybe 
have a couple of hours in the morning evenly divided prior to the vote 
on cloture. Right now we are going to have trouble cramming all of our 
time in with what we have left.
  The PRESIDING OFFICER. The Senator from Texas.
  Mr. CORNYN. Mr. President, I will be glad to do as the Democratic 
whip requests and check with the majority leader about the time 
arrangements.
  Mr. REID. If I may ask one other question of the Chair, I was off the 
floor when Senator Schumer asked consent that he and Senator Feinstein 
be recognized before 5 o'clock. For how much time?
  The PRESIDING OFFICER. For 15 minutes total.
  Mr. REID. So that is also something we have to deal with.
  The PRESIDING OFFICER. Under the previous order, the Senator from 
Texas is recognized for 30 minutes.
  Mr. CORNYN. Mr. President, I am elated that we are beginning to see 
engagement on this important issue by our colleagues on the other side 
of the aisle. I am always impressed with how articulate and forceful an 
advocate our colleagues on the other side are, particularly the two 
Senators who have spoken so far this afternoon, Senator Feingold and 
Senator Durbin, with whom I have the privilege of serving on the Senate 
Judiciary Committee. There are some important answers to the questions 
he raised. There are good answers that resolve each and every objection 
that has been raised to the amendment.
  First of all, I would like to respond to the rhetorical question both 
Senator Feingold and earlier Senator Boxer asked. They said: Why can't 
we let people live their own lives?
  This amendment is not about making it impossible for people to live 
their own lives. Indeed, I agree we should let people live their own 
lives. Of course, we don't believe at the same time that they should be 
able to radically redefine the institution of marriage in the process.
  From the very beginning of this debate--and I am grateful this has 
been a civil, respectful debate--we have made it absolutely clear the 
American people believe in at least two fundamental propositions when 
it comes to this issue. First and foremost, they believe in the 
essential dignity and worth of every human being. But at the same 
time--and this is not a mutually exclusive concept--they believe in the 
importance of traditional marriage as the most fundamental building 
block of a stable society and in the best interest of children. I and 
others on this side are here talking in support of this amendment and 
encouraging this debate because we believe very strongly that the 
positive case for traditional marriage must be made and we should not 
remain mere spectators on the sideline as judges in Massachusetts or 
anywhere else seek to amend the Constitution without the American 
people having a voice in the basic laws that govern our institutions or 
our lives. That is what this debate is all about.
  I found it interesting. Again, I have to hand it to the Senator from 
Illinois. He is a skillful advocate. He must have been one heck of a 
lawyer practicing in private practice. I bet he won more than his fair 
share of his cases. But he speaks of our oath to support the 
Constitution. Certainly, I believe we all have taken an important oath 
to support the Constitution of laws of the United States. But I would 
like to direct my colleague's attention to provisions of the 
Constitution he may have overlooked in that broad generalization he 
made earlier about supporting the Constitution.
  Indeed, one portion of the Constitution provides that ``all 
legislative powers herein granted shall be vested in a Congress of the 
United States . . .'' That is Article I, section 1. That is part of the 
Constitution we swore to uphold. And indeed, under that same 
Constitution, courts are given only judicial powers, not legislative 
powers. What we find ourselves having to do in this debate is talk 
about the abuse of that judicial power, to in essence become a 
superlegislature and dictate a radical redefinition of the most 
fundamental institution in our society, the American family. But when 
courts get it wrong--and indeed, this is part of the genius of our 
Founding Fathers--the Founding Fathers knew that experience, the 
passage of time, or perhaps even a runaway judiciary might make it 
necessary for us to invoke another important part of the Constitution 
that we are here invoking today. That is Article V of the Constitution.
  Indeed, to the best of my count, there have been at least six times 
when the Congress has amended the Constitution in order to overrule an 
erroneous constitutional interpretation by the Federal courts. So we 
make no apologies whatsoever in invoking the entire Constitution and 
the entire process. We make no apology at not sitting back and letting 
judges dictate what the rules are that govern our society, our 
families, and future generations.
  Senator Feingold and Senator Durbin were concerned about the fact 
that this amendment did not go through the Senate Judiciary Committee. 
Actually, I was a little bit confused about Senator Durbin's position. 
On the one hand, he said it did not go through the committee. On the 
other hand, he did concede the fact that there were four hearings of 
the Senate Judiciary Committee on this issue, starting last September, 
and the most recent of which was on June 22, 2004, when Governor Romney 
of Massachusetts appeared before our committee to talk about what he, 
as the Governor of that State, is doing to try to get a constitutional 
amendment to overrule the Massachusetts Supreme Court.
  So we have had four hearings of the Senate Judiciary Committee. I 
know there have been at least two other committees of the Senate to 
consider this issue. It is important to put the concerns that were 
expressed by Senator Feingold and Senator Durbin in that context.

[[Page 15329]]

  As far as the language we are debating is concerned, the so-called 
Allard amendment, that was introduced shortly before, I believe the day 
before the March 23 hearing we had this year on the Federal marriage 
amendment. Indeed, he had filed his original amendment--and this 
clarification was merely that--in November of 2003. So no Member of the 
Senate should be able to claim, in all fairness, of being surprised by 
this or being blindsided. Indeed, this is an issue that has been much 
discussed since actually before but at least since the time in November 
of 2003, when the Massachusetts Supreme Court first handed down its 
edict rewriting the Massachusetts Constitution to provide a mandate for 
same-sex marriage.
  Now, there has been some concern expressed--and I will point out that 
the so-called Smith amendment, to which the Senator from Nevada 
alluded, is the first sentence of the Allard amendment. So it is 
impossible for me to understand how they can claim to be surprised by 
an amendment that is just the first sentence of the two-sentence Allard 
amendment. Insofar as Senator Smith's position, whether he intends to 
offer it--and I cannot vouch for what Congress Daily says, but it seems 
to be pretty reliable--there is a lot of concern--and I am one on this 
side--that we stifle debate by not permitting a discussion of 
alternative amendments, especially one that makes up the first sentence 
of this two-sentence amendment on which we are having the motion to 
proceed.
  So there is no surprise. There is no trickery, no attempt to 
blindside our colleagues on the other side of the aisle. This is about 
having a full, fair, and open debate. I think that is what we are 
doing.
  I believe the Senator from Illinois expressed some concerns about the 
fact that no Federal court has yet mandated same-sex marriage under an 
interpretation of the U.S. Constitution, and that is true. The fact 
also is that there are at least four lawsuits currently pending 
attempting to do exactly that. Indeed, these are the latest lawsuits in 
a long line of legal opinions rendered by legal scholars, from Laurence 
Tribe and others, statements by Senator John Kerry and Senator Ted 
Kennedy as recently as 1996 that the Defense of Marriage Act is 
unconstitutional.
  This language, which I will read from an excerpt out of the Goodridge 
opinion in Massachusetts--and this is really, to me, very 
disconcerting. The Massachusetts Supreme Court said:

       But neither may the Government, under the guise of 
     protecting ``traditional'' values, even if they be the 
     traditional values of the majority, enshrine in law an 
     invidious discrimination that our Constitution, ``as a 
     charter of governance for every person properly within its 
     reach,'' forbids.

  In that excerpt, they have in effect defined traditional marriage as 
invidious discrimination. They went on to say:

       For no rational reason, the marriage laws of the 
     Commonwealth discriminate against a defined class; no amount 
     of tinkering with language will eradicate that stain.

  Here again, they are saying that traditional marriage is a stain on 
the Constitution, on the laws of the Commonwealth of Massachusetts, and 
no rational basis for those laws exists. This is language that I think 
the people across America would find very shocking. The fact is, they 
probably have not had the time or the means to try to find this 
language themselves. That is another reason it is important to have 
this debate. The Goodridge court goes on to say:

       If, as the separate opinion suggests, the Legislature were 
     to jettison the term ``marriage'' altogether, it might well 
     be rational and permissible. What is not permissible is to 
     retain the word for some and not for others, with all the 
     distinctions thereby engendered.

  Translated into English, what the court said is you cannot preserve 
traditional marriage for some adult couples but not for same-sex 
couples. But what you could do, in Massachusetts and elsewhere, is 
eliminate the term ``marriage'' altogether. Shocking. Shocking.
  Now, for those who think that we have somehow on this side of the 
aisle dreamed up this crisis, this threat, this assault to the American 
family and traditional marriage, let me read just another paragraph. 
This, again, is the Goodridge decision out of the Massachusetts Supreme 
Court, mandating same-sex marriage--four judges:

       The separate opinion maintains that, because same-sex civil 
     marriage is not recognized under Federal law and the law of 
     many States, there is a rational basis for the Commonwealth 
     to distinguish same-sex from opposite-sex spouses. . . . We 
     are well aware that current Federal law prohibits recognition 
     by the Federal Government of the validity of same-sex 
     marriages legally entered into in any State, and that it 
     permits other States to refuse to recognize the validity of 
     such marriages. The argument in the separate opinion that, 
     apart from the legal process, society will still accord a 
     lesser status to those marriages is irrelevant. Courts define 
     what is constitutionally permissible, and the Massachusetts 
     constitution does not permit this type of labeling. That 
     there may remain personal residual prejudice against same-sex 
     couples is a proposition all too familiar to other 
     disadvantaged groups. That such prejudice exists is not a 
     reason to insist on less than the Constitution requires.

  That is a direct critique and criticism of the Federal Defense of 
Marriage Act passed in 1996 by a vote of 85 Senators in this body on a 
bipartisan basis. If that isn't a direct signal that the next law under 
attack is the Federal Defense of Marriage Act, I don't know what is. In 
fact, we know that at least four cases are presently pending seeking to 
accomplish just that.
  Now, there have been those who have expressed concerns, saying why in 
the world would we want to pass a constitutional amendment until a 
Federal court actually strikes down traditional marriage, even though 
the Supreme Court has, in Lawrence v. Texas, provided the rationale to 
do so, and that rationale has been adopted by the Massachusetts Supreme 
Court, interpreting their Constitution; why in the world do we want to 
amend the U.S. Constitution at this time?
  I might interject that I bet old John Adams, who was the principal 
author in 1780 of that Massachusetts Constitution, never dreamed that 
four judges on the Massachusetts Supreme Court would so contort the 
meaning of that document as to create a right to same-sex marriage. 
That is one reason they didn't talk about it explicitly, either in the 
State constitution or in the Federal Constitution.
  But in terms of why we shouldn't wait to address this matter, I point 
out that Massachusetts is a good example of why. If we wait until it is 
too late, it may well take years for the American people, through the 
amendment process, to correct that error. In the meantime, we know that 
same-sex marriages will occur as they currently occur in Massachusetts, 
and those people will not just stay in one State but will move to other 
parts of the country to seek to have those marriages validated under 
the laws of their own State. But we do have an example of when States 
have chosen, based on a preliminary ruling suggesting same-sex 
marriage, to amend their constitution. So it is not unprecedented by 
any means.
  As a matter of fact, in 1993 and 1996, Hawaii and Alaska courts 
issued preliminary rulings suggesting that same-sex marriage may be 
constitutionally required, and it was in 1998 that Hawaii and Alaska 
preemptively amended their constitutions before the highest court in 
those States went as far as the Massachusetts Supreme Court did in the 
Goodridge case. Indeed, in 2000, Nebraska and Nevada preemptively 
amended their State constitutions before suits were even filed.
  I might add, there have been suits filed in Nevada seeking to force 
recognition of polygamist marriages under the rationale in Lawrence v. 
Texas and Goodridge, and, indeed, in Nebraska, there has been a Federal 
constitutional challenge to that State Constitution defense of marriage 
provision under this rationale of the Lawrence case seeking to have the 
Federal Government tell Nebraska it cannot recognize traditional 
marriage.
  I want to move to the Allard amendment, which is two sentences. The 
first sentence basically says marriage is between a man and a woman. 
The second sentence seeks to preserve the right of the States to deal 
with the question of civil unions and to reserve that right to them as 
opposed to having a court mandate it.

[[Page 15330]]

  I was a little baffled as to why the Senator from Illinois expressed 
some puzzlement at the meaning of that second sentence when, indeed, 
during one of the hearings we had in the Senate Judiciary Committee, he 
asked Professor Cass Sustein of the University of Chicago Law School:

       Under this language, please explain whether a State 
     legislature could pass a law to establish civil unions.

  Professor Sustein responded:

       I believe it could because no State constitution would be 
     affected.

  We have heard a number of objections raised that this is a State 
issue. We have seen charts being trotted out containing the quotations 
of various public figures. At one time, the Vice President, in a 
different context, said this should be a matter reserved to the States. 
And there was a quote from the Vice President's wife, Lynne Cheney, 
expressing her views, and I certainly respect both of them and their 
right to express their views. But the fact is this cannot be contained 
to one State.
  It is interesting to hear folks on the other side of the aisle make 
States rights arguments to folks on this side of the aisle. The shoe is 
usually on the other foot because they are usually the ones seeking to 
have the Federal Government tell all the States what they should be 
doing rather than let each State--what Louis Brandeis once called the 
laboratories of democracy--work out these various policies.
  The truth is, we are not only talking about whether a State should 
embrace a property tax or a sales tax or perhaps adopt an income tax. 
In my State, we do not have an income tax, and we are proud of it. We 
do not want an income tax in the State of Texas. Each State has a right 
to choose its own policies that way.
  I firmly adhere to that and believe the States rights argument is 
absolutely true. But to suggest we can somehow, as a practical matter, 
contain this revolution, this radical social experiment mandated by the 
Massachusetts Supreme Court, in one State denies reality. The fact is 
people have, indeed, married, they have moved to 46 States and now we 
have at least 10, maybe more, lawsuits as part of a national litigation 
strategy to force other States to recognize the validity of that 
marriage. You would have to be blind to that effort to stand up here 
and say this is a State matter because it is not.
  We know based on the legal arguments of scholars, based on the 
comments of Senator Kerry back when the Defense of Marriage Act was 
passed in 1996--something he did not vote for, by the way, and he now 
says he supports marriage as only between a man and a woman, but then 
he says he does not support a constitutional amendment either. He was 
not for the statute, he is not for a constitutional amendment, but he 
still claims to be in favor of traditional marriage. I don't know if, 
again, this is one of the nuances, quite frankly, that evades me of his 
reasoning process, but you simply cannot have it both ways.
  Indeed, for reasons we have talked about already at great length, 
when as a matter of Federal constitutional interpretation by a court, 
same-sex marriages are required, no State constitution, no State law, 
nobody has a choice in that matter because our Federal Constitution, 
indeed, speaks for the entire Nation and not one State.
  So no matter how much well-intentioned individuals may wish we can 
avoid this debate and say this is a local issue, this is a State issue, 
we do not need to be talking about it, that defies reality.
  I know Senator Durbin had suggested at the close of his comments that 
this is all an attempt to change the subject; that somehow we do not 
want to debate what is happening in Iraq, what is happening in the 
economy. I think the American people certainly know we have debated 
those issues, and we will continue to debate those issues. Frankly, I 
am proud of what we have been able to accomplish in Iraq under a joint 
resolution passed overwhelmingly by this body authorizing the President 
to remove Saddam Hussein from power in that country, something that had 
been the policy of this Congress since at least 1998 when the Democrats 
advocated, and we all agreed--or at least those here at that time--in 
the Iraq Liberation Act. Regime change was a policy of the American 
Government under Democrat control, under a Democrat, President Bill 
Clinton. But it took the present President, George W. Bush, I believe, 
to follow through after Saddam thumbed his nose at 17 resolutions of 
the United Nations requiring him to open his nation up to weapons 
inspectors.
  You want to talk about the economy, we are glad to talk about the 
economy. The economy is roaring back, thanks again to the policies 
advocated by this side of the aisle and led by President Bush who 
created more than 1.5 million new jobs this year alone. Indeed, home 
ownership is at an all-time high. The economy is roaring back, so we 
are glad to talk about that.
  Finally, I have heard Senator Durbin say it before and it makes you 
chuckle when you hear it--well, it is kind of funny. He says he 
believes no constitutional amendment should be debated--I cannot 
remember if he said ``debated,'' ``filed'' or ``passed''--during an 
election year. We did not choose the timing of the Massachusetts 
Supreme Court's decision. I suggest what we are arguing for is a debate 
about the most fundamental institution in our society, and that is not 
a frivolous matter. That is an important matter.
  Indeed, there are some, including this Senator, who believe it is the 
most important matter. Of course, those who have made the States rights 
arguments, all they need to do is read that Constitution once again, 
that Senator Durbin spoke eloquently about, to recognize not only does 
it include a constitutional amendment process, but after two-thirds of 
the Senate and after two-thirds of the House have passed the 
resolution, three-quarters of the States have to ratify the amendment. 
So those who want to stand in this Chamber and say, We believe in 
States rights, we believe this ought to be handled by the States, the 
States retain a voice, a critical voice, a crucial, an essential voice 
in this process through the ratification process.
  I believe this is an important issue. It cannot be solved at the 
local level. It is a national issue requiring a national response. It 
is not premature because to act only after a Federal court mandates 
same-sex marriage on a national basis under the guise of interpreting 
the U.S. Constitution, it will take too long for the people to speak 
and to overturn that decision and we will see something akin to what we 
see now happening in Massachusetts, despite the fact the people of 
Massachusetts have, through their representatives, at least initially, 
chosen to try to overrule that decision by a constitutional amendment.
  The problem is that constitutional amendment cannot be effective 
until 2006. So what happens in the interim? What happens in the interim 
is what we see happening today, because of a dictate from the bench by 
four judges which now we see has a national impact.
  I reserve the remainder of our time and yield the floor.
  The PRESIDING OFFICER (Mr. Chafee). The Democratic whip.
  Mr. REID. Under an order previously entered, Senator Lautenberg is to 
be recognized for 15 minutes. I ask unanimous consent that Senator 
Mikulski--she has been waiting patiently. She had some information that 
she was supposed to have come 40 minutes ago so she is waiting--have 10 
minutes immediately following Senator Lautenberg. We have been going 
back and forth, but some of the speeches have been much longer than the 
others.
  Mr. CORNYN. We have been going back and forth, and I certainly want 
to accommodate every Senator but I also know the Senator from 
Pennsylvania has been here as well.
  Mr. REID. If I could ask through the Chair, how long does the Senator 
from Pennsylvania wish to speak?
  Mr. SANTORUM. If Senator Lautenberg is speaking 15 minutes, I will 
speak for 10 or 15 minutes, if we want to go back and forth.
  Mr. REID. Maybe we can try this: Following the statement of the 
Senator from New Jersey, the Senator from Pennsylvania would be 
recognized

[[Page 15331]]

for 15 minutes and then Senator Mikulski for 10 minutes. We already 
have an order in effect that Schumer and Feinstein are to be recognized 
for 15 minutes total. So they would use their time immediately after 
Senator Mikulski completes her statement. I ask unanimous consent that 
be the case.
  Mr. CORNYN. I have no problem with that as long as we continue to try 
to observe the back and forth so each side has an opportunity to speak.
  Mr. REID. We would not go back and forth from Mikulski to Feinstein 
because there is already an order entered regarding Feinstein and 
Schumer, but they only total 15 minutes.
  Mr. CORNYN. With that exception, I have no objection.
  The PRESIDING OFFICER. Without objection, it is so ordered.
  The Senator from New Jersey.
  Mr. LAUTENBERG. Mr. President, I rise in opposition to this proposed 
amendment to the Constitution as, by the way, has Vice President Cheney 
and Mrs. Cheney. They are opposed. They are not taken by surprise on a 
moral issue. These are sophisticated people who understand government 
and who have a role to play. They are opposed to this amendment, and I 
think there is very good reason for that.
  As Senators, many of us are from different backgrounds but we do all 
share a solemn oath to uphold the spirit and the letter of the American 
Constitution. I would like to uphold the value and the commitment that 
the Constitution makes to all of us to protect our rights.
  I have to raise a question, and that is, what is it that makes this 
the most important business we have in this body right now? Is this the 
only thing that we want to talk about for the American people to hear 
from the Senate? Or would a subject such as the killings that are 
taking place in Iraq, such as it was announced that three more were 
killed yesterday, be more important, and that we are stretching to have 
enough reserves to fight the battle and protect our troops in the best 
way possible but we need to have enough of them? Do the American people 
care about that?
  Are the American people saying the issue that interests us most is 
whether a homosexual couple can marry, even though it is taken care of 
in many States and will continue to be? Are we saying, no, the war is 
not that important, we are going to lay it aside while notices go out 
to families, very often by a knock on the door that is an ominous 
calling that says your son, your daughter has been killed, your son, 
your daughter, has been seriously wounded?
  No, we do not want to discuss that. We have to discuss gay marriage, 
and see whether we can change the Constitution, the Constitution which 
was designed to expand rights at any time that we saw a default in our 
system, whether it had to do with giving the vote to women or the vote 
to 18-year-olds or other expansions of rights.
  No, we want to do the moral thing. We want to decide who is in charge 
of the morality of this country. The people are in charge of the 
morality of this country, not the people who are making speeches today.
  When I think about what affects the American people, how about the 
people who work 35 or 40 years in a company and see their pensions 
disappear in front of their eyes because of the deceptive leadership of 
companies or falsification of records? No, no, the American people do 
not want to worry about that. They want to talk about this amendment. 
That is what they care about.
  My phone is--no, it is not crowded. In fact, I do not get many calls 
at all about the morality of the constitutional amendment that has been 
proposed and, by the way, creates a constitutional convention so we can 
throw anything that we want on top of this.
  No, the American people are not concerned about whether they can pay 
their bills or whether drug prices are going through the roof that they 
cannot afford or whether we can give an education to the children who 
want to learn in Head Start but do not know how. No, those are not the 
issues we want to talk about. We want to talk about whether a gay 
couple can engage in a relationship or a marriage.
  Let the States of New Jersey, Massachusetts, and the other States 
that choose to give that right to give those citizens the same standing 
that other citizens within those States have. No, we do not want to 
discuss that. We want to discuss this issue. We want to discuss what is 
morally correct. What is morally correct is what the people want, and 
we ought to let them hear on this floor that we understand the issues 
that concern them.
  I get calls from families who have people overseas, whether in 
Reserve units or regular enlistments, and they ask, what can we do to 
hasten my son's return? I want to see his face.
  Go to Walter Reed hospital, as I and many others have done. I went 
there a couple of weeks ago after we buried a young soldier from New 
Jersey in Arlington Cemetery. Senator Corzine and I, my colleague in 
the Senate, decided we should not only pay our respects to the dead but 
also our respects to the wounded, and we went to Walter Reed Hospital. 
In one of those rooms there was a young man sitting with his wife and 
he was staring blankly at the floor. It was not his lack of interest. 
It was his lack of sight. He could not see anything.
  He said: I will not be able to see my 28-month-old daughter but I 
still want to hold her. I still miss her. I still love her.
  We do not want to discuss those things. We want to discuss what is 
moral and change the Constitution to impose our value of morality on 
all of America. It is wrong. The proposed constitutional amendment 
before us would etch the markings of intolerance, discrimination, and 
bigotry into a document that is based on the enduring truth that 
everyone is created equal.
  The constitutional amendment that is being offered today would do 
much more than ban same-sex marriages. It would also ban civil unions, 
saying they cannot really live together and share the values of our 
society, or domestic partnership laws, even if those relationships are 
specifically recognized by their fellow residents in their States by 
their State legislatures and signed by the Governor.
  If enacted, I believe this amendment would create a permanent class 
of second-class citizens with fewer rights than the rest of the 
population.
  In fairness and in good conscience, I will not support this mean-
spirited proposal. Our Constitution is about expanding individual 
rights, not taking them away. The last thing the Constitution should do 
is mandate conditions for some people and another set of rights for a 
different group.
  What is especially strange in this debate is we have the Republican 
majority looking to take away a State's right to determine the rules 
for marriage within its borders. I always thought the Republicans were 
States righters. I thought they always wanted to give power back to the 
States. That is what I thought they wanted to do.
  In my home State of New Jersey, our State legislature, the duly 
elected representatives of the people of New Jersey, drafted, debated, 
and enacted a domestic partnership law. We ought to respect the State 
law, not stamp it out.
  The State of New Jersey decided to establish a domestic partnership 
law. The Federal Government has no business telling us we cannot do it. 
It doesn't violate current Federal law and we should let that stand. 
States should continue to have the ability to decide whether same-sex 
couples should have the inheritance rights or pension rights or 
whatever other legal rights should be respected in a domestic 
partnership.
  Domestic relations law, the law that governs family issues, has 
always been the domain of the State, not Federal law. The ability to 
decide matters of marriage has been with the States since the founding 
of the Republic. But now, those who typically advocate a smaller 
Federal Government--shrink government down to size, get rid of those 
people who are making their livings there, forget whether they 
contribute to the general well-being, we want to shrink Federal 
Government--now they are seeking to amend the Constitution to take 
power away from

[[Page 15332]]

the States and put it in the hands of the Government so we can have 
people running around, morality police, making sure this couple isn't 
engaged in a relationship that would be prohibited by Federal law.
  Once the Federal Government starts regulating marriage, you have to 
ask yourself what is next? Ten years from now what is going to stop 
Congress from prohibiting people getting married unless they pledge to 
have children? What is to stop this body from outlawing divorce or 
second marriages?
  You have to ask yourself what is it that is driving this agenda? Why, 
in this election year, are we debating an amendment to the Constitution 
designed to restrict the rights of gay Americans? It is clearly not a 
legitimate legislative debate, as there are not near enough votes to 
pass this amendment. But that doesn't stop them from wanting to use the 
time to confuse the American public about what is important, what is 
important to the public which is worried about their jobs and the war 
and their kids. No. We want to discuss gay marriage.
  I have come to an unfortunate conclusion about why we are doing this 
amendment. This is gay bashing, plain and simple. That is what this is 
about. This amendment is picking on productive members of our society, 
people who pay taxes, want to raise their families and contribute to 
their communities, as everyone else does. They want to be like everyone 
else in their conformity to law. This amendment attempts to divide 
America and it is shameful. It should not be that way.
  When we see things that are shameful we should not be too spineless 
to respond. Look back on world history. There are notorious examples of 
those who seek political advantage by picking on segments of society. 
It is a sad day when we see this dynamic happening here in the United 
States.
  I urge my colleagues, reject this divisive amendment. Let's get on 
with the regular business that affects people's everyday lives. We can 
talk about this after the first of the year. It is not that urgent.
  I yield the floor.
  The PRESIDING OFFICER. The Senator from Pennsylvania.
  Mr. SANTORUM. If you support a mother and father for every child, you 
are a hater. If you believe men and women for 5,000 years have bonded 
together in marriage, you are a gay basher. Marriage is hate. Marriage 
is a stain. Marriage is an evil thing.
  That is what we hear. People who stand for traditional marriage are 
haters, they are bashers, they are mean spirited, they are intolerant. 
They are all these awful things. That would be the only reason we would 
come here is because we hate. It is because we are intolerant. It is 
because we want to hold people down, restrict their rights. That would 
be the only reason anyone could possibly come forward and argue that 
children need moms and dads.
  Or is it the only reason? Isn't there a whole body of evidence out 
there, of 5,000 years of civilization, that shows as plain as this 
piece of paper I am holding up that children need mothers and fathers? 
That the basic unit of any successful society is moms and dads coming 
together to raise children?
  Imagine what our Founders would say today, in a Constitutional 
Convention--which, by the way I suggest to the Senator from New Jersey 
this bill does not call for--that anyone who would come forward and 
suggest that holding marriage should be between a man and a woman is 
doing something that is hateful, something that is against the basic 
principles of equality within our Constitution.
  The Senator from New Jersey said there is no room for debate on 
morality here on the floor of the Senate. It is up to the people to 
make this decision. I wish it were up to the people to make this 
decision. The Senator from New Jersey knows the people are not going to 
be able to make this decision. In fact, the people are being frozen out 
of this decision. They are being frozen out by State courts--I would 
argue, soon to be Federal courts. These are people who are not elected, 
people who are not accountable, people who are not democratic, but they 
are elitists dictating what they believe their world view should be for 
America.
  The only way for the people to decide, I suggest to the Senator from 
New Jersey, is exactly the process we have before us. It is the only 
way for the people to decide. Leave it to the people. It is a great 
mantra. Leave it to the States. What those who suggest that we leave it 
to the States are suggesting is to leave it to the State courts. That 
has always been the secret weapon of those who want to change our 
culture and change our laws without going through the process most of 
us think we have to go through to do that.
  See, most people who are listening to my voice right now think that 
to change a law in America you actually have to get popular support for 
it, that you have to go before your legislature and petition your 
government. But, no, the Senator from New Jersey figured out a long 
time ago, as have many others who agree with his position, that the way 
you accomplish these social transformations that fight against this 
evil, hateful culture that believes in moms and dads and children being 
raised in stable families--the way you do that is you get people on 
these courts who can then dictate to the rest of us how we now shall 
live.
  You have that supported and orchestrated through a variety of 
different ways, from colleges and universities to the media. Anyone who 
speaks out against this political thought is a hater. Anyone who speaks 
out for traditional truth, for truth that has been established in 
Biblical times, through natural law and a whole host of other cultures, 
in fact every civilization in the history of man--if you stand for that 
truth that was accepted by all for centuries, for millennia, you are a 
hater. You are someone who wants to oppress people.
  I am willing to come here and debate the substance of what we are 
doing. It is an important debate: What will happen to marriage if we do 
nothing? That is an important debate. We should have that debate. But I 
am not suggesting the Senator from New Jersey or anybody else who comes 
here to defend a change in traditional marriage is doing so because 
they hate mothers and fathers, because they hate traditional marriage. 
I do not ascribe evil thoughts to them, nor should they to us.
  There is the incredible intolerance of those who argue for tolerance.
  You see, tolerance means you must agree with me and how I feel about 
an issue, and if you do not, you are intolerant. Someone who supports 
traditional values is by definition intolerant because they do not want 
me to be able to do whatever I want to do.
  I never thought that was the definition of tolerance. I didn't think 
tolerance meant any individual should be able to do everything they 
want irrespective of the consequence to anybody else. I will check the 
definition. I don't think that is what tolerance means.
  When we change the definition of something so central to the culture 
of any society--and that is what marriage is and what family is--it has 
profound consequences on children and thereby on the next generation.
  I am not just making this up. It is real. It is so real it has been a 
given forever. I imagine this has been a given forever. All of a 
sudden, now something that is a given, that is a truth of every major 
religion I am aware of, from natural law to philosophy, all of this 
given truth is now seen as pure animus, hatred. But it is not.
  This constitutional amendment is based on a sincere caring for 
children, for family, for the future of this country.
  The Senator from New Jersey suggested that conservatives should be 
for States rights and that we want to shrink government. Let me assure 
you, if we do not stop the change of the definition of traditional 
marriage, if we let marriage be just a social convention without 
meaning or without significance, we will shrink government because we 
have seen where marriage becomes out of favor--whether it is the 
Netherlands or Scandinavia, which I will talk about in a moment, or 
whether it is subcultures within this country in which marriage is seen 
as an out-of-

[[Page 15333]]

date convention. In those cultures, children suffer. In those cultures, 
people do not get married. In those cultures, children are born out of 
wedlock and do not see their fathers and in many cases their mothers. 
Society dies.
  You can say I am a hater, but I will argue that I am a lover. I am a 
lover of traditional family and children who deserve the right to have 
a mother and a father. Don't we want that? Is there anyone in the U.S. 
Senate who will stand up and argue that children don't have a right to 
a mom and a dad; that our society shouldn't be saying to all people 
that moms and dads are the best, an ideal, and what we should strive 
for? When we say that marriage is not that, then we say that children 
don't deserve that. Let me assure you they will not get that.
  I will give you a couple of examples. The most dramatic is in the 
Netherlands. Senators Cornyn and Brownback and others have talked about 
it. But this is a country where marriage was a very stable aspect of 
their culture. They had the highest marriage rate and the lowest 
divorce rate in Europe. They had the lowest out-of-wedlock birth rate 
in Europe--until what? Until a social movement began to change the 
definition of marriage. You can say a lot of other things happened in 
Europe during that time, true. But the Netherlands has always been, 
interestingly enough, the country that was able to dam the tide, stem 
the tide and preserve the traditional family until they began the 
process of changing the definition of marriage to expand it.
  Look at what happened over that period of time: A straight and rapid 
descent in the number of people getting married and, not surprisingly, 
a rapid ascent in the children being born out of wedlock.
  Is this what is best for children? Is this an argument of a hater? Is 
this an argument of someone who is intolerant or is this an argument of 
someone who believes that children deserve what is the ideal for our 
society?
  What has happened in those countries that have allowed people of the 
same sex to get married? Sweden allowed same-sex unions. There are 8 
million people in Sweden. How many same-sex unions? There were 749. Is 
it worth it that now 60 percent of first-born children born in Sweden 
are born out of wedlock? Is this worth it, 749?
  By the way, the breakup rate of those marriages is two to three times 
what it is in traditional marriage. Is it worth it?
  I ask kids today what marriage is about. For the longest time, when I 
asked them what marriage is about, they always answered it is about the 
love of two people. Look at what Hollywood said about marriage. If you 
look at what leaders in this country say about marriage, maybe that is 
what we think it is. You look at the pop stars and celebrities, and 
that is certainly what it is today. It certainly isn't about families 
and kids.
  What are we telling our children? Is marriage just about affirming 
the love of two people? I can assure you that is the motive behind it. 
It is about affirmation of lifestyle, it is about affirmation of 
desires. Marriage and family is more than that. Principally, marriage 
and family has been held up not as an affirmation to make you feel good 
about who you are or who you love, but it is about the selfless giving 
for the purpose of continuing. It is about selflessness, not 
selfishness. It is not about me all the time. This is a society that is 
so wrapped up in ``me.'' Make me feel good, make me affirmed--me, me, 
me. What about kids? What about the future? The greatest generation of 
America was the greatest generation of America. Why? Because they were 
giving of themselves for something beyond themselves.
  The greatest generation that started the baby boom was a generation 
that understood what family was all about.
  A young man walked up to me a year and a half ago in Wichita, KS, and 
handed me this bracelet, and I have worn it every day since. He said 
this bracelet describes what family is. That is what it is--f-a-m-i-l-
y. It says it means family. Forget about me; I love you.
  Is that the kind of family we are debating today?
  There is a reason we are here. It is not because we hate anybody. It 
is not because we don't respect anybody. It is not because we don't 
dignify their worth and value as a person. It is because there is a 
group of people who are trying to change the definition that is central 
to the future of this country.
  That is why we are here. We didn't pick this fight. We didn't start 
this battle. They went to the courts, not to the people. They went to 
the few elitists, and on of the most elitist liberal places in the 
world, Boston, MA, and said, you, the elite of the east coast, 
Northeastern United States of America, you take your isolated values 
and then sweep them across this country. They didn't go to Omaha, NE. 
They didn't go to Peoria, IL. They go to San Francisco, to Seattle, to 
Boston, and to New York, and they impose the values across America.
  That is not democracy. That is not allowing the people of Baltimore, 
the people of Reno, the people of San Antonio, the people of 
Providence, the people of Pittsburgh to speak.
  We have a right to speak. The only way we can do that is through the 
process we have before us, article V of the Constitution, which says we 
have a right to amend the Constitution when things go too far. And 
things are going too far. I ask my colleagues to give the people a 
chance to speak.
  I yield the floor.
  The PRESIDING OFFICER. The Democratic whip.
  Mr. REID. The next Democrat speakers in order following the 
statements of Senators Schumer and Feinstein would be Senator Kennedy 
for 15 minutes, followed by Senator Dayton for 20 minutes. I ask 
consent that be in order on this side of the aisle.
  The PRESIDING OFFICER. Without objection, it is so ordered.
  The Senator from Maryland.
  Ms. MIKULSKI. Mr. President, I wish to speak on the Federal marriage 
amendment and also on the motion to proceed.
  Today I rise to talk about the Federal marriage amendment. I first 
will talk about timing and then about content. First, I will talk about 
timing. Marriage is not under a threat. It is not in any clear, 
imminent danger of being destroyed. What is in clear and imminent 
danger and what we have heard is under threat of possible attack is the 
homeland.
  There are other issues families are facing that are eroding their 
very stability such as their economic situation and the cost of health 
care. If we really want to stand up and protect America and protect 
families, we would be focusing on these and other issues. This 
discussion is ill-conceived, ill-timed, and unnecessary.
  Last week, Homeland Secretary Tom Ridge announced that al-Qaida is 
planning a large-scale attack on the United States of America. What 
should we be doing? We should be working on homeland security. We have 
a homeland security appropriations bill pending, waiting to come before 
the Senate. That is what we should be talking about today, not this 
amendment.
  This is why I will vote against the motion to proceed as a protest 
that we are not meeting the compelling needs of the Nation. We need to 
show a deterrent strategy, to send a message to the terrorists: Do not 
even think you can affect our elections because we would be united 
across the aisle to stand up and vote for legislation to protect the 
homeland. To protect our ports, our cities, our transportation, our 
schools, and, yes, those moms and dads and children we have been 
hearing about all day long. Instead, we are debating the motion to 
proceed to a constitutional amendment. America is united in the war 
against terrorism. We should not be divided in a cultural war.
  Let's talk about another war, the war in Iraq. Right now, we have men 
and women returning with broken bodies, some who have lost their limbs. 
One cannot go to ward 57 at Walter Reed, the way I have, and see the 
young men and women who have lost an arm, lost a leg, lost hope, 
wondering if anybody is ever going to love them again, if

[[Page 15334]]

they are ever going to be able to work again, and not want to do 
everything possible to help these young Americans.
  That is why I am working now on a bipartisan basis with my colleague, 
Senator Kit Bond, on the VA/HUD appropriations bill so we can help our 
veterans, so we can have a prosthetic initiative to give them a 
``smart'' arm with the best technology, to give them a smart leg so 
they can run the race for life and maybe give them back a life. That is 
what we should be focusing on, working on a bipartisan basis, solving 
the problems that confront the Nation.
  This amendment is not about policy; it is about politics. It is not 
about strengthening families; it is about helping the other party get 
elected. If we were serious about helping families, we would be 
focusing on jobs, on health care, on the rising costs of college 
tuition. This proposed amendment does not help families. Why? It does 
not create one new job or keep one in this country. It does not pay for 
one bottle of prescription drugs that seniors so desperately need. This 
amendment does not send one child to college. No, this amendment does 
not help a family pay for health care for a sick child. What it does do 
is divide. Americans are tired of divisive debates. This amendment is 
just simply a distraction.
  On the timing, I wish we would put it aside and address our Nation's 
real needs.
  I also want to talk about the content should we move to proceed. I 
will vote against this amendment because it is unneeded and 
unnecessary. Congress in 1996 spoke on this issue. They passed 
something called the Defense of Marriage Act. What this legislation did 
was define marriage as between a man and a woman. It also allows each 
State to determine for itself what it considers marriage under its own 
State law, leaving the concept of federalism intact.
  Maryland, my own home State, also has a law on the books that defines 
marriage as between a man and a woman. So when you look at Maryland law 
and you look at Federal law, this constitutional amendment is unneeded.
  We talk about what the courts are doing. Well, I don't quite see that 
as the same level of threat as terrorism, or the loss of a job on a 
slow boat to China or a fast track to Mexico.
  Some of my constituents are worried that churches will be forced to 
perform gay marriages. Under separation of church and State, no law--
not a Federal law, not a State law--can force a church, temple, mosque, 
or any religious institution to marry a same-sex couple. That will be 
up to their religious determination. Why? Because, again, under 
separation of church and State, we cannot dictate to a church what to 
do. Because of this constitutional commitment there can be no Federal 
law, for example, even under equal protection that could force the 
Catholic Church to ordain women. Our First Amendment provides this 
protection to religious institutions.
  And so I reiterate that this amendment is unnecessary.
  I also oppose this amendment because I take amending the Constitution 
very seriously. In our entire history, over 200 years, we have only 
amended the Constitution 17 times since the Bill of Rights. We have 
amended that Constitution to extend rights, not to restrict them. We 
amended the Constitution to end slavery. We amended the Constitution to 
give women the right to vote. We amended the Constitution to give equal 
protection in law to all citizens. We amended the Constitution to give 
citizens over age 18 the right to vote. We have never used the 
Constitution as a weapon or as a social policy tool against a minority 
of the population.
  I am concerned that this amendment would condone discrimination. We 
should not embark on that path today. It is wrong. It undermines the 
integrity of the Constitution.
  When the roll is called on the motion to proceed, I will oppose that 
motion. There are far more pressing needs for American families and 
those children we love.
  When we amend the Constitution, it should be to expand hope and 
opportunity, not to shrink it.
  I yield the floor.
  The PRESIDING OFFICER. The Senator from California.
  Mrs. FEINSTEIN. Mr. President, I believe Senator Schumer and I have 
15 minutes between us by unanimous consent agreement, and I ask that I 
be alerted when 8 minutes has passed.


                   Expiration of Assault Weapons Ban

  Ten years ago, I introduced an amendment to the crime bill which 
banned the manufacture and sale of semiautomatic military-style assault 
weapons. Senator Schumer, then a Member of the House, a member of the 
Judiciary Committee, introduced the same amendment in the Judiciary 
Committee. We were both successful. It passed the Senate, passed the 
House, was signed into law by President Clinton.
  Over the past 10 years, gun traces to semiautomatic military-style 
assault weapons have decreased by two-thirds. The ban has worked. But 2 
months from today, the Federal ban will expire.
  Once again, new guns such as the Tec-DC9 will flood our streets. If 
you don't know what a Tec-DC9 is, I am going to show you. This is Gian 
Luigi Ferri, who walked into 101 California Street and killed six 
people, wounding eight. And this is the Tec-DC-9 he was carrying with a 
30-round clip. He had 250 rounds in additional clips with him. He is 
dead here, shot on the floor, but not until after he had either killed 
or wounded 14 people. The ban will expire despite overwhelming public 
support to renew it.
  Seventy-one percent of all Americans support renewing the ban. So do 
64 percent of people in homes with a gun. The ban is going to expire 
despite overwhelming support from law enforcement and civic 
organizations. As you can see, nearly every major law enforcement and 
civic organization in our country supports renewal: the Fraternal Order 
of Police, the Chiefs of Police, the United States Conference of 
Mayors, National Association of Counties, and on and on.
  The ban will expire despite the stated public support of President 
George W. Bush and Attorney General John Ashcroft. As you can see from 
this letter, the administration has reiterated its official support for 
renewing the ban time and time again. From the Department of Justice:

       As the President has stated on several occasions, he 
     supports the reauthorization of the current ban . . .

  And the ban will expire despite the support of a majority of 
Senators, 52. Despite all of this, it looks more and more likely that 
the National Rifle Association will win. The ban will expire, and the 
American people will once again be made less safe.
  Although President Bush has said he supports the ban, the White House 
has refused to lift a finger to help us pass the renewal. They are 
instead playing political hot potato with the Republican leaders in 
Congress.
  The Hill newspaper, on May 12, said that ``an aide to [the Speaker] 
has said privately that if the President pushes for it, the ban will 
probably be reauthorized. But if he doesn't, the chances . . . are 
remote.''
  The Boston Globe reports that a White House spokesman said ``Bush 
still supports the ban but is waiting for the House to act.''
  So the House will act only if the President asks them, and the 
President will act only if the House passes it. It is a classic catch-
22.
  One month ago, June 14, three former Presidents wrote to President 
Bush. Presidents Ford, Carter, and Clinton took the extraordinary step 
of writing a joint letter to President Bush asking him to work to renew 
the ban and offering their assistance to do so. Let me read just part 
of it:

       We are pleased that you support reauthorization of the . . 
     . Assault Weapons Act, which is scheduled to expire in 
     September. Each of us, along with President Reagan, worked 
     hard in support of this vital law, and it would be a grave 
     mistake if it were allowed to sunset.

  It goes on and expresses what this law means. I could not agree more. 
We cannot go back to those days. We know these guns are used by gangs, 
by criminals, by grievance killers, by troubled children to kill their 
schoolmates. We

[[Page 15335]]

also know from al-Qaida training manuals that al-Qaida has recommended 
that its members travel to the United States to buy assault weapons at 
gun shows. Why? Because it is so easy to do so.
  As the threat of terrorism around the world increases, how can we let 
the ban expire and make it that much easier for terrorists to arm 
themselves with military-style weaponry? And make no mistake, gun 
manufacturers and sellers are keeping a close watch.
  In mid-April, Italian customs seized more than 8,000 AK-47 assault 
rifles on their way from the Romanian Port of Constanta to New York and 
then to Georgia. These guns had a value of more than $7 million.
  Of course, shipping assembled AK-47s would be illegal under the ban 
and under a 1989 Executive order of the first President Bush that 
banned certain guns from importation. But according to ATF, importing 
these guns so they can be disassembled, sold for parts, and then 
reassembled would not be illegal, and now purchasers will be allowed to 
reassemble these guns into their banned form. This shipment was not an 
isolated example.
  Here is an advertisement from Armalite, a company that makes post-ban 
rifles. As we can see from this advertisement, they are offering a 
coupon for a free flash suppressor for anyone who buys one of these 
guns so that on September 14, once the ban is expired, the gun can be 
modified to its pre-ban configuration. What do you need a flash 
suppressor for? If you have a flash suppressor on a gun and a 30-round 
clip in it and you are shooting at night at the police or at neighbors, 
you can't see where the gun flashes. The flash is suppressed. So if you 
are a criminal, you may need one. If you are a legitimate citizen, you 
don't.
  This is the kind of thing we can expect, just 2 months from now: 
Companies gearing up to once again produce the deadly assault weapons, 
the high-capacity clips which are now banned, clips, drums, or strips 
of more than 10 bullets, and dangerous accessories we worked so hard to 
stop 10 years ago.
  I hope that, before September 13, the President and the Congress can 
find the courage to stand up to the NRA, to listen to law enforcement 
all across the Nation who know that to ban these guns makes sense and 
saves lives.
  Listen to the studies that show that crime with assault weapons of 
all kinds has decreased as much as 66 percent. The bottom line is that 
everyone knows this ban should remain law, but time is running out. We 
have 14 legislative days. Will the House of Representatives step up to 
the plate and find an opportunity to give the House an opportunity to 
vote to renew the military-style assault weapons legislation?
  I ask unanimous consent to print the following editorials in the 
Record.
  There being no objection, the material was ordered to be printed in 
the Record, as follows:

                 [From the Seattle Times, May 4, 2004]

                   Extend the Ban on Assault Weapons

       The clock is running out on a 10-year-old federal ban on 
     certain types of semiautomatic assault weapons. Without bold 
     action by President Bush, the common-sense law likely will 
     expire in September.
       Bush has said he will sign a bill to extend the ban if 
     Congress approves one. But that's unlikely without his strong 
     backing, and he knows it.
       A strong majority of Americans support the ban on the 
     manufacture, transfer and possession of 19 types of assault 
     weapons, such as the AK-47, the Uzi and the TEC-9. So do the 
     National League of Cities, the U.S. Conference of Mayors, the 
     National Educational Association, the American Bar 
     Association and many other organizations. They support it 
     because it makes sense.
       Seattle Police Chief Gil Kerlikowske is one of hundreds of 
     law-enforcement leaders who back the ban. He says such 
     weapons serve no legitimate purpose for people who aren't 
     police.
       He's right. These weapons aren't necessary for hunting or 
     self-defense. They are for drug dealers, gang leaders and 
     other criminals. They don't belong on America's streets.
       In addition to banning 19 specific semiautomatic assault 
     weapons, the 1994 legislation identifies specific 
     characteristics that categorize a weapon as an ``assault 
     weapon.'' It also bans ammunition clips or magazines that 
     hold more than 10 rounds. At the same time, it exempt 
     hundreds of other weapons designed for legitimate uses.
       The ban isn't perfect. Manufacturers can too easily get 
     around the law by altering their weapons. Still, the fight to 
     keep the ban in place is worth it. And it will be a fight.
       The National Rifle Association is actively opposing 
     extension of the ban. Republican Majority Leader Tom DeLay 
     said there are not sufficient votes to reauthorize the law. A 
     bill that would have protected gun manufacturers from 
     lawsuits died in March when senators tried to include in the 
     bill the extension of the assault-weapons ban.
       If the ban expires Sept. 13, the country could once again 
     manufacture and import these military-style weapons. We don't 
     need them.
       President Bush has said he supports the ban. It's time for 
     him to start acting like it.
                                  ____


           [From the San Francisco Chronicle, April 22, 2004]

                         Renew the Weapons Ban

       The debate over the nation's assault weapons ban will be 
     repeated this spring, with Sen. Dianne Feinstein arguing the 
     need for extending her groundbreaking legislation. Lest she 
     need any more ammunition, tragic news has provided it--the 
     recent cold-blooded slaying of San Francisco police office 
     Isaac Espinoza at the hands of a killer wielding an AK-47 
     assault rifle.
       That there is still strong opposition to extending the 
     weapons ban in spite of its obvious merits speaks to the 
     power of the nation's gun lobby, which has fought every 
     effort for sensible gun control. Earlier this year, Senate 
     Republicans killed their own bill aimed at granting gun 
     dealers and manufacturers immunity from lawsuits filed by 
     shooting victims rather than agree to extend Feinstein's 
     legislation.
       But none of the rhetoric from the National Rifle 
     Association can stand up to the facts. The percentage of 
     assault weapons used in crimes since the original ban passed 
     has been reduced by two-thirds. There is simply no 
     justification for making military-style assault weapons 
     available to the general public.
       While the NRA seems to gloss over the worst incidents 
     involving assault weapons, such as the horrific 1999 
     Columbine High School shootings, Bay Area residents cannot. 
     Feinstein's bill grew out of the 1993 massacre of eight 
     people at 101 California Street in San Francisco by a gunman 
     armed with two semiautomatic rifles. The shooting death of 
     officer Espinoza, allegedly at the hands of 21-year-old 
     assailant, serves as a chilling reminder of the availability 
     and danger of assault weapons.
       The need for the ban is painfully obvious. Reasonable gun 
     control is in everybody's interest, even those citizens who 
     make up the NRA.
                                  ____


                  [From the Miami Herald, May 6, 2004]

              Assault-Weapons Ban Is Itself Under Assault

       If Congress allows the federal ban on assault weapons to 
     expire, the law's public-safety successes will disappear with 
     it. Lawmakers should not let that happen. The ban is saving 
     lives.
       The law prohibits manufacture and importation of 19 types 
     of rapid-fire assault weapons and scores of copy-cats with 
     similar characteristics. In the 10 years since the ban was 
     enacted, its benefits have been undeniable: A U.S. Justice 
     Department analysis shows that banned assault weapons used in 
     crimes dropped by almost 66 percent between 1995 and 2001; 
     they dropped 20 percent in the law's first year, to 3,268 in 
     1995 from 4,077 in 1994. Murders of police officers by 
     assault weapons dropped to zero in late 1995 and 1996 from 16 
     percent in 1994 and early 1995.
       For these reasons, police chiefs spoke as one last week in 
     press conferences across the country. They want U.S. 
     lawmakers to reauthorize the assault-weapons ban before it 
     expires in September. So do government officials and, several 
     studies show, the majority of Americans.
       President Bush supports the ban, but he hasn't been vocal 
     about it. Under pressure from the National Rifle Association 
     to change his position, Bush appears reluctant to repudiate 
     openly a group that supported his candidacy in 2000. But the 
     data should given him ample reason to lead the push for the 
     law's extension. Simply put, we all are safer because of the 
     ban on assault weapons.
       The ban will sunset on Sept. 13 unless Congress approves 
     new legislation keeping it on the books and Bush signs it 
     into law. Bipartisan legislation would extend the ban for a 
     decade. But reauthorization faces the same heated firefight 
     that the original proposal faced 10 years ago.
       In 1994, the ban almost sank a multifaceted crime and 
     safety bill. In addition to the ban on assault weapons, the 
     bill contained other sensible measures: It added 100,000 
     police officers and funded programs to steer youths away from 
     crime.
       The NRA fought hard to persuade lawmakers to reject the 
     ban. It argued that the ban trampled gun buyers' 
     constitutional rights. Its heavy-handed tactics backfired. 
     Several gun-owning lawmakers from both sides of the aisle 
     resigned NRA memberships, and a congressional majority voted 
     to approve the ban.
       Lawmakers should stand firm again, rejecting a replay of 
     the NRA's electon-year fear-mongering. The law doesn't stifle 
     gun

[[Page 15336]]

     ownership; it makes killing machines harder to obtain. The 
     ban does not affect weapons owned before it went into effect. 
     In 1995, two Columbine High School students got their hands 
     on assault weapons. We know the carnage they left behind.
       Assault weapons have no place in civil society. Congress 
     should reauthorize the law that bans them.
                                  ____


            [From the Hartford (CT) Courant, June 11, 2004]

                       Renew Assault Weapons Ban

       Time is running out on efforts to extend the federal 
     assault weapons ban, which is scheduled to expire Sept. 13.
       There's no good reason why civilians should be allowed to 
     own these rapid firing, military-style weapons, which are 
     favored by criminals. The weapons have no legitimate use for 
     self-defense or hunting.
       Unfortunately, Republican congressional leaders are ready 
     to do the bidding of the National Rifle Association, which 
     has fought the ban since it became law a decade ago. 
     President Bush favors an extension of the ban, but unless he 
     pressures Congress to act, it's likely that nothing will 
     happen.
       That would be tragic. Once again, the nation's cities would 
     be flooded with an array of high-powered weapons on streets 
     and in homes. Police officials across the nation have pleaded 
     with Congress to extend the ban.
       Connecticut U.S. Reps. Christopher Shays, Rosa DeLauro and 
     John Larson are among more than 100 House co-sponsors of the 
     proposed extension. Sen. Christopher J. Dodd recently added 
     his name as a Senate co-sponsor. The remaining members of 
     Connecticut's delegation, Reps. Nancy Johnson and Rob Simmons 
     and Sen. Joseph I. Lieberman, should joint them.
       The proposed extension also would tighten current law to 
     close a loophole that has allowed manufacturers to sell the 
     weapons simply by making cosmetic changes in the banned 
     models.
       Passage of the 1994 ban was an important step toward 
     reducing mayhem with powerful guns. Let's not take a step 
     backward.
                                  ____


                [From the New York Times, June 21, 2004]

                           Guns and the Gipper

        On last reflection on the death of Ronald Reagan:
        In the debate over who can lay claim to the Reagan legacy, 
     one aspect of the late president's record has gotten little 
     attention.
        That was Mr. Reagan's willingness to stand up to the 
     National Rifle Association and support the cause of gun 
     control when he thought it was right.
        A decade ago, when the proposal to create a federal ban on 
     military-style assault weapons was teetering between 
     Congressional passage and defeat, Mr. Reagan personally 
     lobbied Republican House members to take what he called the 
     ``absolutely necessary'' step of outlawing the bullet-
     spraying semiautomatic guns favored by criminals. His effort 
     proved crucial, as the legislation passed the House by just a 
     two-vote margin.
        True, it was only after Mr. Reagan left office that he 
     woke up to the need for sensible national laws like the 
     assault weapons ban and background checks for gun buyers. As 
     president, he signed legislation weakening federal gun laws. 
     Right now, President Bush has the chance to go the Gipper one 
     better by waging a principled fight to renew the 10-year-old 
     assault weapons ban, which is due to expire in September. The 
     president is on record as favoring the ban's continuation. 
     But he steadfastly refuses to do anything to rally lawmakers 
     to renew and strengthen its proven, life-saving provisions. 
     Mr. Bush may please anti-gun-control extremists by presiding 
     over the extinction of the assault weapons ban. We doubt it 
     would have pleased Mr. Reagan.
                                  ____


         [From the St. Louis (MO) Post-Dispatch, June 25, 2004]

                         A Landmark Settlement


                              gun control

       A court in West Virginia has approved a settlement 
     requiring a gun dealer to pay $1 million in damages to two 
     New Jersey police officers seriously wounded by a robber who 
     bought a gun through a straw party in West Virginia. This 
     agreement marks the first time a dealer will pay damages for 
     supplying a firearm to the illegal gun market. The lawsuit 
     accused the dealer, Will Jewelry & Loan of Charleston, W.Va., 
     of negligence and creating a public nuisance by selling a 
     dozen handguns to a straw buyer. The straw buyer bought the 
     weapons for convicted felon James Gray.
       Dennis Henigan, an official at the Brady Center to Prevent 
     Gun Violence in Washington, noted that the injured officers 
     would have collected nothing had the U.S. Senate approved 
     legislation in March to shield gun makers and dealers from 
     civil lawsuits. For a time, it seemed that the National Rifle 
     Association would pressure Congress to pass this bill. That 
     was before Democrats succeeded in adding two amendments. One 
     would have banned assault weapons, and the other would have 
     required background checks at private gun shows. Furious 
     Senate Republicans pulled the immunity bill and vowed to 
     stall the two amendments by not allowing the House to 
     consider them this year.
       President George W. Bush can make a difference in this 
     election year by keeping his promise to extend the 1994 ban 
     on military-style assault weapons. The existing ban expires 
     in September. Mr. Bush didn't mention the issue when he 
     invited sporting groups to his ranch in Crawford, Texas, in 
     the spring. Nor did Vice President Dick Cheney mention it 
     when he held an antique rifle at April's NRA convention and 
     accused Democratic presidential candidate Sen. John Kerry of 
     being an enemy of gun makers and users.
       The president appears to want to have it both ways. He says 
     he favors instituting background checks and extending the 
     weapons ban, yet he had urged the Senate not to add either 
     rider to the gun immunity bill. Granted, some of the banned 
     weapons, including the one Mr. Cheney held at the NRA 
     convention, are prized by collectors. And gun enthusiasts 
     point out that many of the banned weapons are no more 
     dangerous than guns in general but have a bad reputation 
     because of movies that glorify gun violence.
       Trouble is, this violence spills over into real life. The 
     memory of Columbine is still sharp for many Americans, 
     although the carnage happened five years ago. Images of 
     snipers picking off innocent people in the Washington, DC, 
     area won't soon be forgotten. And the reckless use of 
     handguns and rifles to maim and murder is a daily occurrence 
     in our country.
       Mr. Bush should give his unequivocal support to extending 
     the ban on military-style weapons that are used mainly to 
     kill people.
                                  ____


                 [From the Baltimore Sun, July 5, 2004]

                            The Line of Fire

       They buried Carlos Owen, Harley Chisholm III, and Charles 
     Bennett last month. The three Birmingham, Ala., police 
     officers were serving an arrest warrant in one of the city's 
     blighted neighborhoods when they were shot and killed. And 
     the incident has left people in that conservative, gun-owning 
     part of the country wondering whether maybe some weapons 
     shouldn't be so widely available.
       The gun that killed the officers was an SKS, a rifle 
     similar to the notorious Russian AK-47. It's a military-style 
     assault weapon and, according to the federal Bureau of 
     Alcohol, Tobacco, Firearms and Explosives, a rifle often used 
     against law enforcement officers. It fires a 7.62 mm round at 
     2,300 feet per second, a velocity that's capable of 
     penetrating police body armor. Earlier this year, two other 
     Alabama police officers were killed in the line of duty. An 
     SKS was used in both shootings.
       Why is this cop-killing gun allowed in circulation in this 
     country? It's not outlawed by the 10-year-old federal assault 
     weapons ban. The AK-47 was, but the makers of the SKS found a 
     way around the ban by making some minor modifications. Yet 
     their gun still has some of the most troubling qualities of 
     an assault weapon--an ability to accept a high-capacity 
     magazine and, even as a semiautomatic, spray a large number 
     of large bullets powerfully and accurately.
       That, and the fact that it's cheap and lethal-looking, has 
     made the SKS a popular gun among criminals. An SKS can be 
     purchased for as little as $200. A used magazine capable of 
     holding 40 rounds might cost an extra $5. It's not a 
     particularly useful gun for hunting. It's not even that 
     popular with the general law-abiding public. All models of 
     assault weapons represent less than 5 percent of the guns in 
     circulation.
       Yet here we are just a few months shy of the day the 
     federal assault weapons ban is set to expire and there's 
     little hope it will be renewed. It should be renewed--and 
     expanded to cover guns such as the SKS. President Bush said 
     four years ago that he supported an extension of the assault 
     weapons ban. A majority of the Senate supports it, too. 
     Right-wing House Republicans don't. President Bush could 
     probably overcome that opposition, but he won't even talk 
     about the issue. Clearly, he'd rather the whole thing went 
     away quietly.
       Of course it won't go away for the families of those 
     murdered Birmingham police officers. While a renewal wouldn't 
     take the existing SKS rifles off the street, letting the ban 
     expire in September would open the door to even deadlier 
     models. What message would that decision send to future cop-
     killers? A lot of Americans, gun owners and police officers 
     included, have been left to ponder: What compelling reason is 
     there to allow bad guys to own assault weapons? And how can 
     the president of the United States continue to claim to 
     support a ban but not lift a finger for the cause?
                                  ____


                   [From the Oregonian, July 5, 2004]

                        Back to Assault Weapons

       Summary: Without pressure from President Bush and action by 
     Congress, the 1994 ban on military-style guns will expire.
       When a man used an assault rifle to shoot three people at a 
     California community center in 1999, then-presidential 
     candidate George W. Bush declared, ``It makes no sense for 
     assault weapons to be around our society.''

[[Page 15337]]

       It still doesn't. President Bush promised during his first 
     campaign to uphold a ban on assault weapons, but he isn't 
     lifting a finger now to prevent the popular law from 
     expiring. The assault weapons ban approved in 1994 by 
     Congress and signed by President Clinton was written to 
     sunset after 10 years. Time's up at midnight on Sept. 13.
       The White House claims Bush supports extending the ban and 
     would sign a bill renewing the law if Congress sends him one. 
     But earlier this year, Bush helped defeat a gun bill that 
     included the ban on assault weapons. The president also has 
     done nothing to encourage Congress to act on the issue in the 
     dwindling days of this session.
       That's a dangerous mistake. Bush was absolutely right when 
     he told voters that assault weapons have no place in American 
     society. These military-style weapons, with rapid-fire 
     capabilities and large-capacity magazines capable of holding 
     dozens of rounds of ammunition, are not hunting or sporting 
     weapons. They are designed for just one thing: shooting 
     people.
       Polls show that Americans strongly favor renewing the ban 
     on these weapons. In late 2003 an NBC/Wall Street Journal 
     poll found that 78 percent of adults nationwide expressed 
     support for renewing the federal ban. A University of 
     Pennsylvania National Annenberg Election Survey found in 
     April 2004 that even 64 percent of the people in households 
     with guns favor the law.
       Every major law enforcement organization in the nation 
     backs the ban on assault weapons, including the Fraternal 
     Order of Police, the National Sheriffs' Association and the 
     International Association of Chiefs of Police. Every police 
     agency understands the dangers of these weapons in the hands 
     of drug traffickers, gangs and terrorists.
       Yet House Speaker Dennis Hastert, R-Ill., and other GOP 
     leaders seem determined to prevent the renewal of the assault 
     weapons ban from even coming to a vote. We strongly urge 
     members of the Oregon congressional delegation to join the 
     bill to reauthorize the ban and to pressure the leadership to 
     bring the matter up for a vote before the law sunsets in 
     September.
       While several studies show a marked decline since 1994 in 
     assault weapons traced to crime, we'll concede that the 
     federal ban has not been a fully effective defense against 
     these guns. The law grandfathered existing assault weapons in 
     1994, and manufacturers have exploited loopholes in the law 
     by producing copycat weapons with only cosmetic differences.
       A responsible Congress, and one not in the thrall of the 
     National Rifle Association, would tighten the law, fix the 
     loopholes and make the ban on these weapons permanent. If 
     that's too much to ask, we'd settle for the president to keep 
     his word on this issue and demand that Congress renew the 
     existing ban on assault weapons.
                                  ____


          [From the San Jose (CA) Mercury News, July 5, 2004]

      Bush Is Doing Nothing To Help Extend Ban on Assault Weapons

       The federal law outlawing some of the most dangerous 
     military-style guns will expire Sept. 13, leaving the nation 
     more vulnerable to horrific crimes.
       The Republican leadership in the House has bottled up the 
     bill extending the 10-year-old assault-weapons ban. But 
     President Bush will bear part of the blame if nothing is 
     done.
       The president has recently repeated his promise, first made 
     when running for president in 2000, to sign an extension. 
     But, unlike his push for the war in Iraq and a tax cut, he 
     has not lifted a finger to see that the bill reaches his 
     desk, and the gun lobby has vowed to keep it from getting 
     there. Bush wants to have it both ways.
       The ban has been only modestly successful in curbing the 
     sale of rapid-fire semi-automatic weapons. Gun manufacturers 
     have devised ways around it; copycat models and high-capacity 
     magazines, imported from abroad, proliferate.
       But the answer is to tighten and to expand the law, along 
     the lines of California's smartly effective 5-year-old 
     assault-weapons ban, and not to return to the days when a 
     wannabe drug dealer or cop killer could buy an Uzi at a local 
     gun shop.
       Law enforcement groups are urging that the ban be 
     continued. It would be a travesty if officers once again find 
     themselves outgunned on the streets they are sworn to 
     protect.

  Mrs. FEINSTEIN. I thank the Chair and yield the floor.
  The PRESIDING OFFICER. The Senator from New York.
  Mr. SCHUMER. I thank the Chair.
  I thank my colleague from California for her leadership and her 
eloquence on this issue. She has done a wonderful job, and I hope that 
her pleas to the White House and to the House are heeded.
  We stand on the floor today debating an amendment to the Constitution 
for which there is already a statute that does the same thing. We are 
ignoring basic needs. Instead of debating this amendment, why aren't we 
debating homeland security? Last Friday there was a warning issued to 
all of us, a severe warning, yet the Homeland Security bill, despite 
the warning that was issued to us on Friday, languishes.
  We are here today to bring up another important issue--people's lives 
and these kinds of weapons, which thankfully have been banned on our 
streets for the last 10 years and, woefully, may be back on our streets 
2 months from today if we do nothing.
  That is the bottom line. The assault weapons ban has been an amazing 
success. It is supported by the American people overwhelmingly. 
Yesterday a poll showed that 79 percent support renewal. Today a new 
poll showed that in the swing States, Midwestern and Southern States, 
where there are large numbers of gun owners, overwhelming majorities 
support the ban. Gun owners support the ban. Law enforcement supports 
the ban. The list that my colleague from California showed is lengthy 
and comprehensive.
  So why wouldn't something that has saved lives, that has been so 
successful, that has helped bring down the crime rate not be brought up 
on the floor of the House and is in danger of lapsing? One simple word: 
Politics. Politics of a small few who seem to call the dance when it 
comes to dealing with issues like this Street Sweeper.
  Point one is that these weapons are not made for hunting. They are 
not made for self-defense. They were designed by armies to kill a lot 
of people quickly. They are never used by good people, who certainly 
have a right to bear arms. In fact, recently al-Qaida told its 
membership in a training manual found by the U.S. military that 
terrorists should use America's weak gun laws to get serious weapons 
and to try to get assault weapons. Terrorists want these weapons, drug 
dealers want these weapons, criminals want these weapons. Police men 
and women do not want these weapons, hunters do not want these weapons, 
small store owners who carry a small sidearm for self-defense don't 
want these weapons.
  Why do we have to be on the Senate floor pleading with the President 
and the House for renewal of a law that has been so successful? Again, 
one word: Politics. A small group of fanatical people somehow have an 
ideological mission that they must restore these weapons to our 
streets. They don't represent gun owners. They don't represent the 
North or the South or the East or the West. They represent their own 
misguided ideology. But the President, who is on the campaign trail 
talking about leadership, cowers and shakes before this small group of 
ideologues. He has said he is for the renewal of the assault weapons 
ban. But according to the House leadership, he has not mentioned once 
to them that he would like the bill to be on the floor of the House of 
Representatives. The Speaker of the House says that we need the 
President to get this going. The President says the House should do it. 
It is a classic Abbott and Costello routine, a shell game, a classic 
duck the consequences, or the worst aspects of politics.
  The bottom line is that if George Bush wanted the assault weapons ban 
to be renewed, it would be. All he would have to do is pick up the 
phone once and call Speaker Hastert and say put it on the floor of the 
House; and on the floor of the House it would pass, just as it passed 
this body a few months ago when the Senator from California and I 
offered it. And then the President would sign it.
  But the President thinks he can get away with this, that he can get 
away with this nasty little game; that he will keep happy his hard-core 
small number of supporters who believe these weapons should be on the 
streets, and he will not pay the price.
  Mr. President, I cannot predict how our politics will work out in the 
next few months. But it is my guess that if this ban is not renewed, 
and AK-47s, Street Sweepers, and Uzis are back on our streets, starting 
2 months from today, that the President will pay a political price for 
it. That is no solace to me. That is no solace to my colleague from 
California. We would much rather have this renewed, as everybody knows 
it should be.

[[Page 15338]]

  No hunter, no gun owner has been hurt by the inability to carry an 
Uzi. Some criminals have been hurt, terrorists have been hurt, but no 
legitimate citizen who certainly has a right to bear arms. And I 
support the second amendment, but I don't support the view that it 
should be seen through a pi hole.
  We make one last plea--and we have 13 legislative days left--to the 
President of these United States to step up to the plate, show real 
leadership, and ask that the assault weapons ban be put on the floor of 
the House of Representatives, and that it be renewed because it has 
been successful and good for just about everybody.
  I ask unanimous consent to have several articles printed in the 
Record.
  There being no objection, the material was ordered to be printed in 
the Record, as follows:

               [From the New York Times, April 20, 2004]

                   Targeting Voters in the Worst Way

       It is not quite the same as kissing babies, but Vice 
     President Dick Cheney beamed as he handled an antique rifle 
     for his photo-op last weekend at the National Rifle 
     Association convention. Mr. Cheney, the administration's most 
     famous duck hunter, was on a reassurance mission, drawing 
     cheers as he trumpeted President Bush's commitment to 
     hunters' constitutional rights. Mr. Cheney attacked Senator 
     John Kerry, the Democratic challenger, as a firearms wuss, 
     despite Mr. Kerry's beady-eyed display last fall when he 
     blasted pheasants from the Iowa skies in his own vote-hunting 
     foray.
       Mr. Cheney's personal visit signaled how much of a fence-
     mending charade the White House is staging to soothe the 
     politically powerful gun lobby. Some N.R.A. members are still 
     miffed at Mr. Bush's ostensible promise--left over from his 
     2000 campaign--to sign a renewal of the 10-year-old ban on 
     assault weapons if that vitally needed measure should ever 
     manage to be passed by the Republican-controlled Congress. 
     But, of course, the Capitol's pro-gun leadership has already 
     made sure that the president's promise bobs as lifelessly as 
     an election-year decoy.
       Banning assault rifles simply protects society from fast-
     fire attack weapons designed for waging war, not hunting. But 
     Mr. Bush never once pressed Congress to pass the renewal. 
     Instead, he spent his political capital on the gun lobby's 
     outrageous proposal to grant immunity from damage suits to 
     irresponsible gun manufacturers and dealers.
       This is the Bush-Cheney team's true record on gun control. 
     Too few voters are aware that the assault weapons ban will 
     certainly expire in September while the president declines to 
     lift a finger to save it. The law's demise looms as another 
     national gun tragedy, even as politicians in both parties 
     calibrate how much more pandering to gun owners will be 
     needed in the hunt for votes in the swing states.
                                  ____


                 [From the Post-Standard, June 27, 2004]

                              Consider This

        The assault weapons ban might not have become law a decade 
     ago without an assist from what some might consider an 
     unexpected quarter--former president Ronald Reagan.
        Already out of office, Reagan nevertheless expended what 
     political capital he had left to lobby fellow Republicans. 
     The measure passed the House by just two votes.
        That same assault weapons ban, which has been doing its 
     job keeping lethal weaponry out of the hands of criminals all 
     these years, is set to expire in September. While President 
     Bush says he'll sign a continuation of the ban, he doesn't 
     appear willing to lift a trigger-finger on its behalf. And 
     the assault weapons lobby seems to have Congress in its back 
     pocket. Unless . . .
       Well, unless the president is willing to spend a little of 
     his own political capital, do the right thing and push for 
     the ban. It shouldn't be hard. After all, he'd be doing it 
     for ``The Gipper.''
                                  ____


               [From the Detroit Free Press, May 7, 2004]

     Assault Guns; Moms March for a Needed Renewal of National Ban

       Thousands will gather on Mother's Day Sunday in Washington, 
     D.C., including at least 500 people from Michigan, to join 
     the Million Mom March and push Congress for a needed renewal 
     of the assault weapons ban. Lawmakers should listen.
       Renewing the ban is a modest and commonsense step that is 
     supported by most Americans, while vociferously opposed by 
     the powerful gun lobby.
       Shikha Hamilton, president of the Million Mom March in 
     Detroit, says the group wants to hold President George W. 
     Bush to his promise of support for the ban, which will expire 
     in September unless Congress renews it.
       The ban covers 19 kinds of assault weapons and has 
     significantly reduced the frequency with which these guns are 
     used in crimes.
       To be sure, it has not solved the problem of gun violence. 
     Manufacturers have gotten around the ban by making minor 
     changes. People can legally, and easily, buy parts that, put 
     together, will turn a legal gun into an illegal one. It's 
     also obvious that all people must be held accountable for how 
     they use guns.
       That said, the 1994 ban has slowed the flow of assault 
     weapons onto the street. Letting it expire would undo years 
     of work by groups fighting for sensible gun laws.
       Some pro-gun activists will try to depict Million Mom March 
     as an extremist group trying to scrap the Second Amendment. 
     It is not.
       A modest federal law to restrict military-style guns whose 
     only purpose is to mow people down ought to make sense to any 
     member of Congress not under the undue influence of the gun 
     lobby.
       For more information on the march, go to 
     www.millionmommarch.com
                                  ____


          [From the Atlanta Journal-Constituion, March 5, 2004]

            Pry Congress From Cold, Deadly Clutch of the NRA

        Those who say that negotiating with the gun lobby is like 
     making a deal with the devil owe the archfiend an apology.
        For months, the National Rifle Association has lobbied 
     hard for passage of a bill that would make the gun industry 
     immune to civil lawsuits. The measure--the NRA's top 
     legislative priority--had already passed the House, and this 
     week was close to passage in the Senate as well, until NRA 
     lobbyists stepped in at the last minute and ordered that the 
     bill be killed.
        Why the sudden change of heart? Because Democrats and 
     moderate Republicans had succeeded in attaching two quite 
     sensible, reasonable gun-safety measures to the bill. One 
     amendment extended the 1994 ban on military-style assault 
     weapons that's set to expire in September; the other closed a 
     loophole that permitted people to buy firearms at gun shows 
     without having to undergo instant background checks.
        Officially, President Bush backs both measures, although 
     he has done nothing to support them. According to a recent 
     survey by the Consumer Federation of America, the assault 
     rifle ban is also supported by a majority of the nation's gun 
     owners. The assault weapons ban is particularly important to 
     law enforcement officers, who had pleaded with Congress to 
     renew the ban and also close the gun show loophole. According 
     to the Justice Department, the proportion of banned assault 
     weapons traced to crimes had dropped by 65.8 percent since 
     1995, most likely as a result of that law.
        Nonetheless, U.S. Sen. Zell Miller was among six Democrats 
     who voted against renewing the ban on military-style assault 
     weapons. ``First of all, the term `assault' was dreamed up to 
     give the weapons included a bad name. Who could be for an 
     `assault weapons'? The definition is really `semi-automatic,' 
     and about 15 percent of all firearms owned in the U.S. meet 
     the definition,'' said Miller.
        Had the gun-immunity bill passed, it would have voided 
     hundreds of pending lawsuits, including those filed by more 
     than 30 cities devastated by gun violence and by dozens of 
     shooting victims and their families. For example, it would 
     have slammed shut the courthouse door to the families of the 
     victims of Beltway snipers John Allen Muhammad and Lee Boyd 
     Malvo. The families are suing Bull's Eye Shooter Supply, the 
     Washington state gun shop where Malvo either bought or stole 
     the semi-automatic rifle used to slaughter 10 people. Between 
     2000 and 2003, the gun shop somehow ``lost'' 230 other guns 
     from its inventory.
        Bull's Eye tried to have the case dismissed, but the 
     courts ruled that the store had some responsibility to ensure 
     its firearms didn't fall into the hands of criminals. The 
     judge relied on the established legal principle that a person 
     who carelessly furnishes a criminal an open opportunity to 
     commit a crime can be held liable.
        The NRA and its supporters want to give the gun industry 
     an immunity to being sued that no other American industry 
     enjoys. As they have demonstrated, they want that immunity 
     only on their terms, with no compromise and no tolerance for 
     any effort that might reduce the toll in lost and broken 
     lives attributed to guns. And while that absolutist approach 
     is troubling, the docile willingness of so many in Congress 
     to accommodate that extremism is more troubling still.
                                  ____


               [From the Los Angeles Times, May 16, 2004]

                       NRA's Eye Is Fixed on Bush

       Just under four months from today, Americans will be able 
     to walk out of a gun store with an AK-47 rifle, an Uzi or 
     other weapon of mass murder under their arm.
       Unless Congress acts--and Republican leaders show no 
     inclination to do so--the 10-year-old federal assault gun ban 
     will expire Sept. 13. A word from President Bush would get a 
     renewal before lawmakers, a majority of whom would probably 
     approve it. But the president is silent.
       Most people, including most gun owners, are properly 
     alarmed. A survey released last month by the University of 
     Pennsylvania's Annenberg Public Policy Center found that 71% 
     of those surveyed and 64% of gun owners wanted Congress to 
     extend the ban.

[[Page 15339]]

       But congressional leaders, too accustomed to taking 
     marching orders from the National Rifle Assn., have stymied 
     the reauthorization bill that Sens. Dianne Feinstein (D-
     Calif.), John W. Warner (R-Va.) and Charles E. Schumer (D-
     N.Y.) introduced last year.
       The 1994 ban bars the manufacture and importation of 19 
     specific semiautomatic gun models and other models with 
     similar features. These are not hunting weapons; what they do 
     best is mow down humans, from factory workers to 6-year-olds 
     in a school cafeteria. That's why Los Angeles Police Chief 
     William J. Bratton and his colleagues in other cities 
     steadfastly support renewing the ban. Bans by the states on 
     such weapons, including California's, would stay in effect. 
     But there would be no bar against Californians buying such 
     guns in Nevada or elsewhere.
       The NRA disingenuously insists that the federal law is 
     flawed because it prohibits some guns while permitting 
     virtually identical weapons cosmetically tweaked to evade the 
     law's reach. But when Feinstein proposed a more inclusive 
     ban, similar to California's, which defines assault guns by 
     their generic characteristics, the NRA crushed it. It also 
     blocked her effort to close a loophole in the current law 
     that allows importation of high-capacity bullet clips.
       However tempting it is to blame Congress for the stalemate 
     over this bill, the leadership failure is really the 
     president's. Bush has said he backs the ban. He also wants 
     the NRA's political endorsement, which the gun group is 
     withholding until after the ban expires. So Bush has put no 
     pressure on Senate Majority Leader Bill Frist (R-Tenn.) or 
     House Speaker J. Dennis Hastert (R-Ill.) to move Feinstein's 
     measure or its House counterpart.
       If Bush says the word, Frist and Hastert will put the gun 
     ban extension before their colleagues for a vote. And if Bush 
     means it when he says his top priority is to keep Americans 
     safe, he will do just that.
                                  ____


              [From the Los Angeles Times, July 13, 2004]

                       Reload the Assault Gun Ban

       Two months from today, the federal assault weapons ban 
     dissolves like a wisp of gun smoke. Even though he proudly 
     carried the National Rifle Assn.'s seal of approval in 2000, 
     President Bush says he supports renewing the 10-year-old ban, 
     but he has refused to push Congress in that direction. His 
     word to congressional leaders would matter greatly now, just 
     as his continued silence suggests that he values the NRA's 
     support over Americans' safety.
       The NRA's strategy is to get its friends in Congress to run 
     out the clock on the assault weapons ban. Toward that end, 
     House leaders have blocked any vote on bills to extend the 
     ban for another decade, and a Senate bill amended with 
     renewal language died in March. Yet congressional leaders are 
     pushing for votes on time-wasting wedge issues such as 
     proposed constitutional amendments banning same-sex marriage 
     and flag desecration.
       The 1994 ban bars the manufacture and importation of 19 
     specific semiautomatic gun models and others with similar 
     features. These aren't hunting weapons, unless you consider a 
     classroom full of 7-year-olds or swing-shift workers at a 
     factory to be prey.
       The NRA loudly insists that the law is flawed because it 
     bars some guns while allowing nearly identical weapons that 
     have been cosmetically tweaked. That's absolutely correct. 
     But when Sen. Dianne Feinstein (D-Calif.), who sponsored the 
     1994 ban, proposed a more inclusive ban, like California's, 
     which defines assault guns by their generic characteristics, 
     the NRA crushed it. It also killed her effort to close a 
     loophole in the current law that allows importation of high-
     capacity bullet clips. If the federal law does expire, 
     California's assault gun ban would stay in effect. But there 
     would be no bar against Californians buying these weapons of 
     mass destruction in Nevada or elsewhere.
       Bush justifies the war in Iraq by insisting that it has 
     made this nation safer. But the president and his 
     congressional allies risk making American cities and towns 
     far more dangerous by their shameful failure to renew the 
     assault gun ban. They have just 61 days left.
                                  ____


                [From the Washington Post, May 25, 2003]

                         Weapons for Terrorism

       Some of the most efficient firearms sought by terrorists--
     international as well as domestic--may flood the markets of 
     this country if Congress fails to renew a federal ban on 
     semiautomatic assault-style weapons. The ban is scheduled to 
     expire next year after a decade in force; House Majority 
     Leader Tom DeLay (R-Tex.) announced at one point recently 
     that the House would not even have a vote on the matter. But 
     House Speaker J. Dennis Hastert (R-Ill.) then insisted that 
     no final decision had been made, noting that he first wants 
     to talk to President Bush, who has been on record as 
     supporting the ban. That's the right position, but it will 
     take more than presidential lip service to uphold it in an 
     election year.
       The 1994 law made it illegal to manufacture, transfer or 
     possess 19 specific models of semiautomatic weapons. It also 
     banned ammunition magazines that hold more than 10 rounds. If 
     anything, the law needs to be strengthened. A Congressional 
     Research Service report released last week found that U.S. 
     gun laws in general can be easily exploited by terrorist 
     operatives shopping for weapons in this country. In the case 
     of assault weapons, the gun industry has found clever ways to 
     make cosmetic design changes in their models to get around 
     the federal ban. Even so, according to the Brady Center to 
     Prevent Gun Violence, every major law enforcement 
     organization in the country has supported the ban. These 
     groups point out that these firearms remain the weapons of 
     choice for drug traffickers, gangs and paramilitary groups. 
     As weak as the ban may be, evidence exists that the number of 
     assault weapons traced to crimes dips when such laws are in 
     place. In Maryland, for example, a ban on assault pistols 
     took effect in June 1994. The Brady Center found that the 
     number of these guns recovered by Baltimore police in the 
     first six months of 1995 was down 45 percent from the 
     comparable period the year before.
       The ban on assault weapons needs time and broadening to 
     have more effect. Reopening the gates to still more assault 
     weapons makes no sense in civilized society. Congress and the 
     president ought not make it any easier for terrorists, 
     deranged people, drive-by shooters or criminals--foreign or 
     domestic--to kill and maim.

  The PRESIDING OFFICER. The Senator from Texas is recognized.
  Mr. CORNYN. Mr. President, I want to address the motion to proceed to 
the amendment now pending before the body, the Federal marriage 
amendment. One of the arguments that I hear again and again--I guess I 
am so shocked and amazed that somebody would actually make the argument 
that I perhaps have not done a very good job in responding to it.
  For the record, I think it is important to respond to the argument 
that has been made twice this afternoon on the floor by the Senator 
from Wisconsin and the Senator from Maryland, that the constitutional 
amendment process is for expanding and not limiting rights. In other 
words, they think the only permissible purpose of a constitutional 
amendment is to expand, not limit individual rights, presumably 
including the right to same-sex marriage.
  These are the same people who accuse supporters of wanting to ``write 
discrimination into the Constitution.'' I find the argument disturbing 
and offensive, but I also find it somewhat revealing. I wish that 
everyone who was engaged in this debate would take counsel in the words 
the distinguished Senator from Massachusetts, who is in the Chamber, 
once stated during the course of the debate on the Defense of Marriage 
Act back in 1996. Even though he did not support the Defense of 
Marriage Act at that time, he observed that ``there are strongly held 
religious, ethical, and moral beliefs that are different from mine with 
regard to the issue of same-sex marriage, which I respect and which are 
no indication of intolerance.'' I agree with those words.
  To those who consider the traditional institution of marriage to be 
about discrimination, they have already, somehow, made same-sex 
marriage into a right that is the status quo that those who want to 
preserve traditional marriage are trying to discriminate against. I 
don't know whether it is just a technique of argument to try to pin the 
idea of discrimination or of wanting to limit rights on those who 
basically want to preserve the status quo as it has existed in our 
civilization for 5,000 years, and certainly in this country for as long 
as it has existed or whether they actually have bought into the 
specious argument that somehow wanting to preserve the institution of 
traditional marriage for the benefit of the American family and our 
children is about limiting rights.
  It is nothing of the kind. Indeed, both the NAACP and the American 
Bar Association have testified that they have no position on whether 
traditional marriage laws should remain on the books.
  Now, setting that aside for just a moment, which is rather amazing in 
and of itself, if marriage were about discrimination, surely both the 
NAACP and the American Bar Association would oppose it. But it is not, 
and they did not. To the contrary, religious leaders in every community 
across America have expressed their support for traditional marriage. 
They recognize the importance of traditional marriage in their 
respective communities,

[[Page 15340]]

including many communities that are all too familiar with the scourge 
of discrimination.
  Indeed, during some of the hearings that we have had on this issue in 
the Senate Judiciary Committee, we had individuals such as Rev. Ray 
Hammond of the Bethel African Methodist Episcopal Church in Boston; 
Rev. Richard Richardson of the St. Paul African Methodist Episcopal 
Church in Boston; and Pastor Daniel de Leon, Sr., of Alianza de 
Ministerious Evangelicos Nacionales, otherwise known as AMEN, and 
Templo Calvario in Santa Ana, CA. Surely, these people, who have fought 
their entire lives against racial discrimination, and who support 
traditional marriage, cannot be labeled as bigots or wanting to limit 
rights or somehow wanting to write discrimination into the 
Constitution. To the contrary, they understand that it is traditional 
marriage that represents the status quo.
  It was a basic assumption of John Adams when he penned the 
Massachusetts Constitution but which was rewritten at the hand of four 
judges on the Massachusetts Supreme Court.
  It is those of us who are arguing for this constitutional amendment 
to preserve the status quo in this country who are doing just that and 
not attempting to limit rights. Rather, it is telling that those who 
make accusations are so intolerant of the democratic process contained 
in article V of the U.S. Constitution that provides a means for the 
people to express their views and to have a voice, to have a vote on 
something as important as this.
  It is precisely because these activists believe traditional marriage 
is about discrimination that they believe all traditional marriage laws 
are unconstitutional and, therefore, must be abolished by the courts. 
These activists have left the American people with no middle ground. 
They accuse others of writing discrimination into the Constitution, yet 
they are the ones writing the American people out of our constitutional 
democracy.
  As I have often said, and I think it is worth saying again, the 
American people believe in two fundamental propositions, at least, 
among others: One is the essential dignity and worth of every human 
being. This is not about wanting to limit rights or wanting to hurt 
anyone. This is about preserving something that is a positive social 
good in our society, that has stood the test of time, something that is 
important to the stability of our civilization, that is important 
because it is in the best interest of children.
  I had the honor for 4 years to serve as attorney general of my State, 
and Texas is one of the few States where the attorney general has the 
privilege of enforcing child support obligations. I am very proud of 
the good work the men and women in my office did to improve our 
collection efforts by more than 80 percent in 4 years because they were 
literally able to put food on the table and a shelter over children who 
did not have that because they were denied the right given to them 
under our laws to have the financial support to which they are 
entitled. But it was there I became very aware of the challenges that 
confront children in a society that cares only about adults and thinks 
about children only as an afterthought.
  We know, as Senator Santorum mentioned, the only place where we 
actually have some experience, some record of what happens when a 
radical experiment with the definition of marriage and traditional 
family takes place is we have this correlation with an increase in out-
of-wedlock childbirths and more and more children who are at risk of a 
whole host of social ills.
  As somebody who believes the family first and foremost is there to 
help those children as they grow, to avoid those risks and to grow up 
and be productive citizens, I do not think we ought to be taking any 
chances with the most important and fundamental institution we know of 
in our society that is designed to operate in their best interest, not 
coincidentally so that the American taxpayers do not have to continue 
spending their hard-earned money to provide services that might 
otherwise be provided by the family, or build more prisons or provide 
more opportunities for drug and alcohol rehabilitation, other risks 
that, unfortunately, too many of our children fall trap to today.
  I found it very compelling that members of the minority community--
African-American and Hispanic communities--particularly those who work 
in places such as Boston and California and elsewhere, are some of the 
most passionate about the importance of maintaining the traditional 
family against this attempt to write them out of our laws and out of 
our Constitution.
  It seems the supporters of traditional marriage are faced with an 
unhappy task: Either we give up the traditional institution of marriage 
to those activists who want to rewrite the definition, who see marriage 
as nothing more than discrimination, or we enshrine traditional 
marriage with the constitutional protection our children need and 
deserve.
  I believe the traditional institution of marriage is too important to 
sit on the sidelines or to fail to have this important debate. I 
believe it is worth defending, and that is why I support this important 
amendment.
  I see the Senator from Massachusetts in the Chamber. I will be glad 
to yield so he may address the Chamber.
  The PRESIDING OFFICER. The Senator from Massachusetts.
  Mr. KENNEDY. Mr. President, under the previous agreement, I believe I 
am allotted 15 minutes; is that correct?
  The PRESIDING OFFICER. That is correct.
  Mr. KENNEDY. I yield myself 12 minutes.
  Mr. President, we know there are many urgent challenges our country 
faces. The war in Iraq has brought sudden new dangers, imposed massive 
new costs, and is taking more and more American lives each week. At 
home, unemployment is still a crisis for millions of our citizens. 
Retirement savings are disappearing, school budgets are in crisis, 
college tuition is rising, prescription drug costs and other health 
care expenses are soaring, millions of Americans are uninsured, Federal 
budget deficits extend as far as the eye can see, we cannot even pass a 
budget bill, and our good friends, the Senator from California, Mrs. 
Feinstein, and the Senator from New York, Mr. Schumer, spoke to the 
Senate about the importance of continuing the ban on assault weapons 
that has made such an extraordinary difference in helping to protect 
American lives and which is about to expire in the next several days. 
That is a matter we ought to be considering if we are interested in 
security and protecting the lives of American citizens, as well as if 
we are going to protect family values. But, no, that is not the 
opportunity we have under our Republican leadership.
  We just celebrated the 40th anniversary of the great Civil Rights Act 
of 1964. Yet now, instead of dealing with the real priorities facing 
the Nation, the Republican leadership, President Bush, wants us to 
persuade Congress to write bigotry back into the Constitution by 
denying gays and lesbians the right to marry and receive the same 
benefits and protections married couples now have.
  It could not be clearer that the Republican leadership has brought up 
this proposal for pure politics, not for its underlying merits. They 
are hoping to use the issue to drive a wedge between one group of 
citizens and the rest of the country solely for partisan advantage.
  The Republican leadership does not want a vote on the merits. Do you 
hear me? The Republican leadership does not want a vote on the merits.
  Last Friday, Senator Reid informed the Senate that the Democrats were 
willing to accept a time agreement with a straight up-or-down vote on 
the Federal marriage amendment on Wednesday. We have cleared it on our 
side to do that, he said; we are ready to move forward on it; we are 
ready to rock and roll. Those were the words of the Senator from 
Nevada. And the Republican leadership refused our offer.
  Can you imagine that? We have listened to all these statements, all 
these speeches about let the Senate exercise

[[Page 15341]]

its will, let's take action, this is urgent, important, and we agreed 
to do it and they said no. No, no, the Republican leadership refused 
our offer, and we question their sincerity about this amendment when we 
offer and agree to vote at a certain time and they say, no, no, we are 
not going to do that; we feel passionately about this amendment; we 
believe in the importance of our amendment, but we do not want to 
permit you to vote on this amendment.
  In all my years in the Senate, I do not recall a single instance in 
which the party that supported a measure refused an up-or-down vote on 
its merits and instead manipulated the process to produce a cloture 
vote on a motion to proceed. That is what we are faced with. You ask us 
why we doubt their sincerity, why we question the timing of bringing 
this up, and the process and the procedure when we on this side say, 
OK, we'll vote on it, and you say no. Oh, yes, we are sincere about our 
motives, we care deeply about children, we care about the Constitution, 
we care about all of these issues, but we don't want a vote. That just 
doesn't add up.
  Obviously, they fear that too many Republican Senators would vote 
against the constitutional amendment on its merits. In fact, it is 
possible that it would not even get a majority of Senators to support 
it. When it became clear that a majority of the members in the 
Judiciary Committee did not support this proposal, they simply bypassed 
the committee process altogether.
  This is not a serious debate about our constitutional tradition and 
values. If it were, we would have a vote on this tomorrow, up or down, 
as the Democratic leadership has proposed. Instead, it is a procedural 
way in order to put people on the record. It is a sham. It is a 
desperate ploy to divide the Nation for political advantage. The rabid 
reactionary religious right has rarely looked more ridiculous. They 
know they don't have the votes to come even close to passing this 
amendment, but they have a sufficient stranglehold on the White House 
and the Republican leadership in Congress to force the issue to a vote 
anyway, in a desperate effort to arouse their narrowminded constituency 
and somehow gain an advantage in the elections this year. My guess is 
their strategy will boomerang and that vastly more Americans will be 
turned off than are turned on by this appeal to stain the Constitution 
with their language of bigotry.
  There is absolutely no need to amend the Constitution on this issue. 
As news reports from across the country make clear, Massachusetts and 
other States are already dealing with the issue, and doing it 
effectively, and doing it according to the wishes of the citizens of 
their States. Contrary to the claims of the supporters of the 
amendment, no State has been bound--listen to this--no State has been 
bound or will be bound by the rulings or laws on same-sex marriage in 
any other State. That is the constitutional law. You can hear it 
described in other forms out here, and surely it has been, but I have 
just stated the constitutional law.
  Longstanding constitutional precedents make clear that the States 
have broad discretion in deciding to what extent they will honor other 
States' laws on sensitive questions about marriage and raising 
families. The Federal statute enacted in 1996, the Defense of Marriage 
Act, makes the possibility of nationwide enforceability even more 
remote.
  So if it is not necessary to amend the Constitution, it is necessary 
not to amend it. In more than 200 years of our history, we have amended 
the Constitution only 17 times since the adoption of the Bill of 
Rights. Many of those amendments have been adopted to expand and 
protect people's rights.
  Having endorsed this shameful proposed amendment in an effort to 
divide Americans and assist the faltering election campaign, President 
Bush will go down in history as the first President to try to write 
bigotry back into the Constitution. No one can now claim with a 
straight face that he has lived up to the campaign promise to be a 
uniter and not a divider.
  The manner in which this amendment has been brought up to the Senate 
floor is disgraceful. The Republican leadership has decided to bypass 
the usual process of debating and marking up proposed constitutional 
amendments in the Judiciary Committee. They know they do not have the 
votes to pass it out of the committee. They also know they do not have 
the two-thirds majority they need to pass the amendment in the full 
Senate, but they have chosen to rush it to the floor of the Senate 
anyway, in an effort to embarrass Democrats before our convention at 
the end of the month.
  It is Republicans who should be embarrassed. As Chairman Hatch once 
said:

       It denigrates the committee process to bypass the Judiciary 
     Committee, especially when an amendment to the Constitution 
     of the United States of America, the most important document 
     in the history of the Nation, is involved.

  In the past 25 years, only 2 amendments out of 19 have been 
considered on the Senate floor without having been referred to the 
committee first. In both these cases, the amendment was brought before 
the full Senate by unanimous consent. Trying to write discrimination in 
the Constitution is bad enough, but throwing the Senate rules out the 
window and proceeding with a discriminatory amendment that the majority 
of Americans do not want and a majority of the Senators don't support 
solely for the purpose of scoring points in a Presidential election 
campaign demeans this institution and all who have served in it.
  This debate is about politics--an attempt to drive a wedge between 
one group of citizens and the rest of the country solely for partisan 
advantage. We have rejected that tactic before, and we should reject it 
again.
  In the Goodridge case, the Massachusetts Supreme Judicial Court was 
interpreting the Massachusetts Constitution, not the U.S. Constitution. 
As a rule, the Federal Government has no authority to tell States how 
to interpret their own laws and constitutions. The Federal marriage 
constitutional amendment would change this fundamental principle of 
State sovereignty by imposing a rule of interpretation on State courts.
  I am certainly glad it was not done at other times of American 
history. The Massachusetts Constitution was written by John Adams in 
1780. He wrote it virtually himself, much of it copied by the 
Constitutional Convention in 1787.
  In 1783, the issue of slavery came before the Massachusetts Supreme 
Court, and Massachusetts has the only constitution of all 50 States 
that has been interpreted as barring slavery. We were the first State 
of all the States to ban slavery, the only State that banned it in the 
constitution itself, Massachusetts, under John Adams, the only State, 
in 1783. And we had slaves in my State for 150 years before it.
  So it is nice to hear our colleagues talk about Massachusetts and 
about our court and our judges there. I remind our colleagues, of the 
seven Massachusetts judges who voted, six were and are Republicans. 
Only one is a Democrat. Six are Republicans. I happen to be someone who 
supports the court decision in Massachusetts. I am proud of them.
  But make no mistake, a vote for the Federal marriage constitutional 
amendment is a vote against civil unions, domestic partnerships, and 
other efforts by States to treat gays and lesbians fairly under the 
law. It is a vote against allowing States to decide these issues for 
themselves. It is a vote for imposing discrimination, plain and simple, 
on all 50 States.
  Supporters of the proposed amendment claim that religious freedom is 
somehow under attack by States that grant the same rights and the same 
benefits to same-sex couples that married couples now have. But as the 
first amendment makes clear, no court, no State, no Congress can tell 
any church, any religious group, how to conduct its own affairs. No 
court, no State, no Congress can require any church, any synagogue, any 
mosque to perform a same-sex marriage. Not a single church in 
Massachusetts or any other State has been required to do anything it

[[Page 15342]]

doesn't want to do, and that will continue to be the case so long as 
the Federal marriage constitutional amendment does not take place.
  The true threat to religious freedom is posed by the Federal marriage 
amendment itself, which would tell churches they cannot consecrate a 
same-sex marriage, even though some churches are now doing so. The 
amendment would flagrantly interfere with the decisions of religious 
communities and undermine the longstanding separation of church and 
state in our society.
  As Rabbi Michael Namath, a member of the Union for Reform Judaism and 
the Central Conference of American Rabbis, explained in a recent forum:

       Some religious traditions, including Reform Judaism, 
     recognize the legitimacy of same-sex unions. Many Reform 
     rabbis around the country routinely perform same-sex 
     weddings. Yet some warn that if the FMA were adopted, 
     performing a religious wedding ceremony for a same-sex couple 
     might be unconstitutional, illegal. . . . The FMA would give 
     the federal government express authority to bar religious 
     groups from sanctioning same-sex marriage--and the authority 
     to punish those that do.
       . . . Court challenges on ``free exercise'' grounds may not 
     succeed because the Federal Marriage Amendment, being the 
     more recent addition to the Constitution, might supersede the 
     ``free exercise'' clause. If so, this would undermine the 
     foundations of our country.

  The PRESIDING OFFICER. The Senator has used the 12 minutes.
  Mr. KENNEDY. Mr. President, those who oppose gay marriage and 
disagree with the recent decision by the supreme judicial court have a 
first amendment right to express their views.
  There is no justification for attempting to undermine the separation 
of church and state in our society or to write discriminations against 
gays and lesbians in the U.S. Constitution. Too often the debate over 
the definition of marriage and its legal incidence have ignored the 
very personal and loving family relationships that would be prohibited 
by a constitutional amendment.
  More and more children across the country today have same-sex 
parents. What does it do to these children and their well-being when 
the President of the United States and the Senate Republican leadership 
say their parents are second-class citizens?
  The decision by the Massachusetts court addressed the many rights 
available to married couples under the State law, including the right 
to be treated fairly by the State's tax laws, to share insurance 
coverage, to visit loved ones in the hospitals, to receive health 
benefits, family leave benefits, and survivor benefits. In fact, there 
are now more than a thousand Federal rights and benefits based on 
marriage.
  Gay couples and their children deserve to share in all of these 
rights and benefits, too. Supporters of the amendment have tried to 
shift the debate away from equal rights by claiming their only concern 
is the definition of marriage, but many supporters of the amendment are 
against civil union laws as well and against any other rights for gays 
or lesbians.
  Just last month we saw a new dawn for civil rights in the Senate. On 
an amendment to the Defense authorization bill, we passed our 
bipartisan hate crimes legislation by an overwhelming majority, 65 to 
33. Thanks in large part to the courageous and effective leadership of 
Senator Gordon Smith, 18 Republican Senators joined all Democratic 
Senators in approving this needed protection against hate-motivated 
violence. Last month's vote on hate crimes showed the Senate at its 
best. The decision to bring up this divisive, discriminatory, and 
unnecessary amendment does just the opposite.
  We have far better things to do in the Senate than write bigotry and 
prejudice into the Constitution. We should deal with the real issues of 
war and peace, jobs and the economy, and many other priorities demand 
our attention so urgently in these troubled times. I urge my colleagues 
to reject this discriminatory proposal.
  The PRESIDING OFFICER. The Senator from Virginia.
  Mr. WARNER. Mr. President, did the distinguished Democratic whip wish 
to be recognized?
  Mr. REID. Did the Senator from Colorado have something he wanted to 
say?
  Mr. ALLARD. I was going to yield some time to the senior Senator from 
Virginia.
  Mr. REID. If I could be heard briefly, we on this side are seeing the 
end of people who wish to speak tonight. The only speakers we have 
remaining, following Senator Dayton, are Senator Clinton for 15 minutes 
and Senator Jeffords for 10 minutes. I ask unanimous consent that in 
the usual order we have been using today of back and forth, Senator 
Clinton next be recognized, Senator Jeffords be recognized following 
that, and if the Republicans have speakers interspersed between those 
we understand that.
  Mr. ALLARD. Let me understand the Senator's request. We have been 
alternating back and forth.
  Mr. REID. We will continue to do that.
  Mr. ALLARD. We will continue to do that on this side?
  Mr. REID. I was saying, if the Republican side did not have a speaker 
we would go ahead.
  Mr. ALLARD. No objection.
  The PRESIDING OFFICER. Without objection, it is so ordered.
  Mr. ALLARD. Mr. President, I yield the senior Senator from Virginia 
such time as he may consume.
  Mr. WARNER. Ten minutes.
  Mr. ALLARD. I yield him 10 minutes. It is always a pleasure to be 
able to recognize him because we all admire the work he does. I am 
particularly proud to be able to serve with him on the Armed Services 
Committee. He is the chairman and does a great job.
  The PRESIDING OFFICER. The senior Senator from Virginia.
  Mr. WARNER. I thank my distinguished colleague from Colorado. I 
commend him, as well as the Senators from Texas, Pennsylvania, and 
Alabama, and so many who have worked on this important constitutional 
amendment, S.J. Res. 40.
  I have listened to the debate the past several days. I have actually 
gone back, together with my staff, and reviewed the Congressional 
Record of Friday and Monday. I feel obligated to indicate to the Senate 
my own views with regard to this resolution and what I intend to do.
  First, I intend to vote in support of cloture on the motion to 
proceed to the Federal Marriage Amendment, S.J. Res. 40. I feel very 
strongly that the Senate should be accorded the opportunity to debate 
in full and to amend, if it is necessary, and I think it is necessary, 
S.J. Res. 40.
  For that purpose, I hope cloture prevails and that we can, as a body, 
continue to address this very important legislation. It is of utmost 
seriousness.
  My greatest concern throughout this process is the heavy weight that 
rests on all of us when we go to amend that document which has enabled 
this Republic--each morning we open the Senate by our Pledge of 
Allegiance to this Republic, which I think historians will agree is the 
longest continuous surviving republic in the history of the world. It 
is a remarkable document, the wisdom that is incorporated in our 
Constitution, the Declaration of Independence, and Bill of Rights.
  Therefore, I think it is incumbent upon the Congress to proceed with 
the utmost care when amending our Constitution. I think that should be 
brought out in the ensuing debate if cloture prevails, and I hope it 
will, and I lend my support.
  The proposed constitutional amendment reads as follows:

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

  I unequivocally support that part of this resolution. The second 
part, which 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 woman.

  Therein rests a concern that I have with S.J. Res. 40, and one I will 
work with others to address in the event hopefully that this Senate 
will continue its debate and the amendment process. I unequivocally 
support the first sentence, as I said. The time-honored tradition of 
marriage between a

[[Page 15343]]

man and a woman ought to be protected in light of the attacks by 
certain opportunists in the judiciary on this time-honored part of our 
culture and heritage, a culture and heritage that our Nation, a young 
nation, shares with nations far older than ours.
  Again, the second sentence gives me this pause, despite the 
statements by many of my colleagues to indicate what they believe the 
intent is. I do not think it speaks to the clarity that the public is 
entitled to and wants, and this could lead to a great deal of confusion 
among the American public, and I do not want to create that confusion. 
It could lead to considerable litigation.
  Perhaps of the greatest concern on my part, it could lead to some 
measure of hindrance of the ability of the several States, all 50 of 
them if necessary, to work their will through their legislatures on the 
very important issues that remain; namely, whether to recognize or not 
to recognize those other forms of relationships, particularly the 
domestic partnership relationships. For these reasons, I intend to 
align myself post-cloture with those Senators who seek to modify the 
resolution to retain only, and I repeat to retain only, the first 
sentence:

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

  I see in the Chamber the distinguished Senator from Utah. I wonder if 
I might pose a question. As I look at this language which gives me 
pause and I have spoken to, the second sentence, ``Neither this 
Constitution, nor the constitution of any State, shall be construed to 
require,'' suppose a State wishes to enact those laws they deem 
necessary on behalf of the people of that State, either to recognize or 
not to recognize the domestic partnership. Suppose they wish to put 
that in as a part of their constitution subject to the passage of this 
amendment. How would this amendment then be construed? Would it 
overrule a state's subsequent amendment to its own constitution?
  Mr. HATCH. If this amendment was passed as the Senator reads that 
language, it does not prohibit the States from having civil unions or 
civil accommodations.
  Mr. WARNER. Suppose they wish to do it not by statute but actually by 
an amendment to their constitution? The Senator and I understand that a 
constitutional amendment has a greater longevity than a statute because 
what the legislature does via statute one day they can undo the next 
day.
  Mr. HATCH. So long as the action of the State, either legislatively 
or constitutionally, does not change the definition of a marriage as 
only between a man and a woman, the State would have the right to do 
whatever it wants to in that regard. This just merely makes it clear 
that nothing in the amendment requires the States to----
  Mr. WARNER. I understand very clearly the intent of this in the minds 
of many. The State legislatures can take such steps. I believe there is 
a measure of confusion that causes me to pause. But it reads that 
``neither the Constitution nor the constitution of any State,'' and 
what the Senator says is they wish to but legislation not in the form 
of State law, but that constitutional provision would not then be 
overruled by this.
  Mr. HATCH. The States would have great flexibility under this 
amendment. But they could not change the definition of the traditional 
terms. The Senator is correct in his interpretation.
  Mr. WARNER. I yield the floor.
  The PRESIDING OFFICER. The Senator from Minnesota.
  Mr. DAYTON. Thank you, Mr. President.

       We hold these truths to be self-evident, that all men are 
     created equal, that they are endowed by their Creator with 
     certain unalienable rights, that among these are life, 
     liberty and the pursuit of happiness. . . .

  With those immortal words 228 years ago, the signers of the 
Declaration of Independence set forth the founding principles of this 
country. They chose the word ``unalienable'' to mean that those rights 
were God-given. They were rights with which every person was born, not 
to depend upon the attitudes or ideologies of any government.
  Eleven years later, after winning their War of Independence, after 
trying one unsatisfactory design of government, after many discussion, 
debates, arguments, and compromises, others signed their name to our 
United States Constitution. It was a remarkably farsighted document--
deserving of the word ``visionary''. It was intended to define, 
provide, and protect the rights of American citizens and the structure 
of their democratic government.
  Unfortunately, their founding principles and idealism had some 
glaring deficiencies. When they said all men were created equal, they 
meant only men, and only white men. It took 130 more years before those 
constitutional rights were extended fully and equally to all citizens--
to African-Americans, to women, and to everyone else. Those 
constitutional amendments signaled only the starting points, not the 
finish lines, to full opportunities, equal protections, and freedom 
from discrimination, harassment, and assault. Those paths were 
difficult, often dangerous, and sometimes even fatal for their 
travelers. Slowly, too slowly, unevenly, yet inexorably This country 
has progressed toward the realization of those God-given rights: life, 
liberty, and the pursuit of happiness, for every American citizen.
  The life that God gives each of us; the liberty to be as God made us; 
and the right to pursue our individual needs, goals, and fulfillments--
whatever necessary ingredients of our happiness. We receive no 
assurances of happiness, but the promise we have the God-given right to 
pursue it.
  Today, we are a Nation of 293 million citizens. That is a lot of very 
different people pursuing a lot of very different forms of happiness. 
It is an enormous and continuous challenge for government to permit 
life, liberty, and pursuit of happiness and to decide where limits must 
be established.
  The Constitution requires, however, that those limits must apply 
fairly and justly--and that those liberties can only be taken away for 
a compelling reason and through a due process.
  People's differences are no longer legitimate reasons. Not different 
colors of skin, different religious beliefs, different genders, 
nationalities, or physical characteristics. People don't have to like 
other people's differences, but they must allow and tolerate them.
  Allowing and tolerating differences is what separates democracies 
from dictatorships. Even dictatorships allow behaviors and beliefs 
which conform to their ideas and ideologies. However, they will not 
permit or tolerate behaviors and beliefs which differ from theirs. 
Those groups of people are persecuted, punished, and even murdered for 
their differences.
  It is sometimes difficult for those of us who live in democracies to 
allow other beliefs and behaviors, which we dislike or disapprove of. 
It is especially difficult if those other beliefs or behaviors differ 
from our own moral or religious views. Although our Constitution 
separates ``church and state,'' we do not willingly give up or even 
compromise our strongly held beliefs based upon our religious teachings 
or moral values.
  Many Americans who oppose gay and lesbian relationships or marriages 
believe they are called to do so by God, by Jesus Christ, by the Bible, 
or by another religion's instructions. Recently, I reread the Bible's 
New Testament, which provides the foundation and instruction for my 
Christian faith. I reluctantly bring the Bible into this debate, 
because I often hear people, who denounce homosexuality, claiming that 
``the Bible'' or ``the New Testament'' supports their views.
  However, in the entire New Testament, there is only one reference to 
same-sex relationships, in Chapter Two of Paul's Letter to the Romans. 
Jesus Christ does not mention them even once in any of the four 
Gospels.
  Instead, His overriding instruction was to love thy neighbor as 
thyself. That was his second great commandment, which superseded all 
the rest.
  Jesus also warned several times to beware of false prophets. How 
could they be identified? He said that they spread hate, instead of 
love.
  I do not understand how some religions developed their strong 
prejudices

[[Page 15344]]

against gays and lesbians--prejudices which are not only unsupported by 
Jesus' teachings in the Bible, but which even violate his instructions 
to love one another, as I have loved you, to judge not, lest ye be 
judged, to spread love, not hatred.
  Yet the discrimination against gays and lesbians in this country has 
been filled with judgment and hatred.
  Thousands of American citizens have been fired from their jobs, 
evicted from their homes, harassed, threatened, assaulted, even 
murdered, because of their sexual orientations. Some other Americans 
have spread that hatred and caused that harm, while professing their 
own religious piety and moral superiority.
  Who has the authority to dispute that every human being is God's 
intentional creation; that we are different because God made us 
different, not superior, not inferior, just different, equal in the 
sight of God, equal in the U.S. Constitution?
  There is a better way to resolve this widespread concern about the 
effects of couples' State court decisions on marriage--decisions which 
are being resolved by the legislatures and the people of those States, 
and which contrary to the ``marriage is under terrorist attack'' 
hysteria, as some politicians are promoting, do not threaten either the 
Federal laws or the State laws against same-sex marriages.
  As others have noted, a 1996 Federal law, called the Defense of 
Marriage Act, already does what the proponents of this constitutional 
amendment want to do.
  The Defense of Marriage Act was passed ``to define and protect the 
institution of marriage.'' That law states:

       In determining the meaning of any act of Congress or of any 
     ruling, regulation or interpretation of the various 
     administrative bureaus and agencies of the United States, the 
     word ``marriage'' means only a legal union between one man 
     and one woman as husband and wife.

  The law goes on to say that no State shall be required to recognize a 
same-sex relationship treated as marriage anywhere else. That is the 
law of the United States of America, unchallenged Federal law. How much 
more protection could the institution of marriage need from the 
Congress? None.
  The proposed constitutional amendment has not one whit of additional 
legal protection to what the Federal law already provides, so why are 
we being subjected to this charade of politicians' piety, an oxymoron 
if ever there was one? It is an election year, a Presidential election 
year. It is no coincidence that the defense of marriage law was passed 
in 1996, another Presidential election year.
  One can only wonder how marriage managed to make it through the 2000 
Presidential election without something being done to it then.
  That is really what is going on. This political ploy is not about 
``saving marriage''; it is about saving politicians' jobs. Thank 
goodness we have Senator so and so, they will say back home, to save us 
from the heathen hordes. Thank goodness we have the President saving 
us, too. We may not have jobs or health care. We cannot afford 
prescription drugs or gasoline. They are bankrupting the Federal 
Government with deficits, they are destroying our credibility 
throughout the world, they made a mess of Iraq, they cannot find 
weapons of mass destruction or Osama bin Laden or whoever shut down 
Congress with anthrax or ricin, but they are defending marriage--again 
and again and again and again. Let's reelect them.
  It is a tragic day in America when politicians exploit the 
Constitution of the United States to get themselves reelected. It is a 
tragic day for millions of Americans who are being exploited by those 
politicians. This is a hurtful, hateful, harmful debate for America, 
one that only will get uglier, meaner, more divisive, and more 
dangerous if it moves on to State legislatures as the constitutional 
amendment requires.
  It must be stopped here and now. That is why I will vote against the 
constitutional amendment. If my colleagues really do want to save 
marriage for now and for posterity, turn it over to the authority of 
established religions. In the many wedding ceremonies which I attend, 
marriage is described as an institution created by God. Yet those 
services conclude with ``whom God has joined together let no one cast 
assunder.''
  If marriage belongs to God, as I believe it does, then our separation 
of church and state government should not interfere with its 
administration by the properly chosen religious authorities. Instead, 
government should adopt a different term to use for the legal rights 
and responsibilities under a civil contract, which I believe any two 
adults should equally be able to enter into. Giving marriage back to 
the churches, synagogues, and mosques and separating it from government 
is marriage's salvation and society's solution.
  Let us direct our efforts to protecting America from al-Qaida. Leave 
the Constitution alone and leave marriage to God.
  I yield the floor.
  The PRESIDING OFFICER (Mr. Alexander). The Senator from Utah.
  Mr. REID. Will the Senator yield?
  Mr. HATCH. I am happy to yield.
  Mr. REID. Mr. President, we have two final speakers tonight, Senator 
Clinton and Senator Jeffords. Following that, we would have no more 
speakers on this side.
  So when the distinguished chairman of the committee finishes his 
speech, Senator Clinton will be recognized and following that, Senator 
Jeffords.
  Mr. HATCH. I think Senator Brownback would like to be recognized. 
Following Senator Clinton, Senator Brownback will speak.
  Mr. REID. How much time is left on both sides under the order already 
entered?
  The PRESIDING OFFICER. There is 40 minutes on the Democrat side.
  Mr. REID. Fine. And how about the majority?
  The PRESIDING OFFICER. There is 75 minutes on the majority side.
  Mr. REID. After the distinguished Senator from Utah speaks there will 
probably be no time left.
  Mr. HATCH. He hopes. I have not noticed the great sense of humor 
lately of the Senator from Nevada but that was very good.
  I will respond to some of the arguments that my colleagues have been 
making against this measure today.
  First, I thank them for coming to the floor and making themselves 
heard. This is an extremely important issue and it deserves a serious 
debate. After all, we are talking about traditional marriage. We are 
talking about traditional marriage that has existed for more than 5,000 
years that apparently is going to be overturned if we do not do 
something about it.
  One argument I have heard from my colleagues on the other side of the 
aisle is on behalf of States rights. Yesterday, the distinguished 
Senator from California argued that we run the risk of violating the 
sacred rights of the States if we pass this amendment. This morning, 
her colleague from California, the junior Senator from California, made 
the same point. The distinguished Senator from Wisconsin, too, believes 
marriage should be defined in the States.
  When Senators who normally argue for extending national power start 
citing George Will and Bob Barr, we should probably look at their 
arguments with a heightened level of scrutiny and maybe even security 
because there is something wrong here when these liberal Senators are 
using as their champions George Will and former Congressman Barr, who 
is one of the most conservative Congressmen who ever sat.
  When legislators and other advocates who not only tolerate but 
actually embrace repeated judicial amendments to the Constitution--I 
will talk about judicial amendments to the Constitution--there is 
sudden resistance to popular amendments, the people's amendments, it 
must be taken with at least a grain of salt.
  We are talking about judges taking over and amending the Constitution 
at will, which is what is happening in our society, and not only 
Justices of the Supreme Court but four liberal activist justices on the 
Massachusetts Supreme Court, binding every State through the full faith 
and credit clause to their

[[Page 15345]]

concept of same-gender marriage. It was a 4-to-3 vote. Three liberal 
justices disagreed with the four liberal justices in Massachusetts.
  They surely know, these friends of ours on the other side who are 
suddenly finding the importance of States rights, they surely know that 
by opposing a constitutional amendment to protect marriage, judges will 
continue imposing same-gender marriage over the will of the American 
people or over the will of the people in the States.
  Their constituents deserve better than these misleading arguments. 
They know that.
  We did not choose the schedule for this issue. It was chosen for us. 
And we do act reluctantly.
  Let me pose a question. If this is such a political issue, why did 
President Bush and Vice President Cheney indicate on the campaign trail 
in 2000 that it was premature to pursue an amendment? They both did, by 
the way. The American people were as opposed to amending traditional 
marriage then as they are now. The reason for this change in strategy 
is quite simple. In the year 2000, an amendment was premature. It is no 
longer.
  In 1996, not one State required same-gender marriages--not one. Now, 
however, Massachusetts has. Massachusetts has, I have to say, because 
same-gender marriage is the law of the Commonwealth of Massachusetts, 
determined by four activist, liberal justices.
  Today, 46 States, for the first time in history, have same-gender 
married couples living in them. That was not the case in the year 2000. 
And the argument that it was premature to call for a constitutional 
amendment was a good argument at that time, but not today, with 46 
States with same-gender married couples living in them, and one State 
imposing its will through judicial legislation, if you will, on all 50 
States.
  Eleven States are having not only their traditional marriage laws but 
even a State amendment, in the case of Nebraska, targeted by committed 
interest groups. In Washington State, a couple married in Oregon is 
seeking recognition of their marriage. In New York, Attorney General 
Eliot Spitzer has amazingly concluded that even though New York law 
explicitly limits marriage to between a man and a woman, he--I guess 
the ``god almighty'' Attorney General of New York, Eliot Spitzer--will 
recognize same-gender marriages performed out of State.
  He may be right because under the full faith and credit clause, that 
is what is going to be imposed on all States because of four avant-
garde liberal justices in Massachusetts.
  The list of legal challenges goes on. In the year 2000, when 
President Bush and Vice President Cheney urged patience on this issue, 
traditional marriage was secure. The States could handle this issue on 
their own. Today, they no longer can, all because of four activist, 
liberal justices in Massachusetts versus three liberal justices in 
Massachusetts, in a 4-to-3 verdict.
  Courts are poised to remove this issue from them, destroying the 
democratic principle of self-governance that some of these folks on the 
other side are arguing should never be done. Why, the States ought to 
have the right to determine these things for themselves.
  Well, let me go over that one more time.
  Courts are poised to remove this issue from the States, destroying 
the democratic principle of self-government that our Constitution was 
established to guarantee.
  Gov. Mitt Romney, in his testimony before our committee last month, 
got the point and demonstrated the impact of his State court's decision 
to sanction same-gender marriage. I quote him:

       The effect of one state recognizing same-gender marriage 
     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. That is how the 
States can control this. That is the right way to have the people in 
charge rather than four liberal justices imposing this on all of 
America.
  Like I say, I think gay people have a right to their lifestyle, 
certainly in the privacy of their home. But they do not have the right 
to impose that lifestyle or to impose their views on everybody in 
America by changing the definition of marriage. They should not have 
that right.
  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.
  Governor Romney's diagnosis is correct. At this point, a commitment 
to States rights is a recipe for depriving States of any authority over 
the matter.
  And so our Republican leadership did what leaders do, they adjusted 
their direction. Because the situation today is vastly different than 
what we faced in 2000, we require a different solution.
  Our goals are not what Mrs. Boxer, the distinguished Senator from 
California, has described. Nobody here is concerned about whether same-
gender couples should care about each other. Nobody here denies them 
that right. Nobody here is even concerned about that. And nobody is 
concerned about whether they are moving in down the street.
  What we are concerned about is the likelihood that the courts are 
going to amend the laws in every State in the land by judicial fiat. We 
are concerned that a small interest group is lobbying the courts to do 
its dirty work, hoping that judicial fiat will accomplish what it 
cannot achieve in open political debate.
  In not one State has the legislature amended its laws to allow for 
same-gender marriage--not one. We are fooling ourselves if we think 
that the courts care. They have already begun their work to undermine 
traditional marriage. And rest assured, more is on the way. If the 
States think they have sufficiently protected their traditional 
commitments to marriage, they had better think twice.
  What we are witnessing is an unprecedented usurpation of the people's 
will. But those who support this judicial disregard for popular 
authority do not bravely defend this irresponsible activism. Instead, 
they take the easy way out. It should be left to the States, they say. 
Easier said than done. The fact is, these decisions are already being 
removed from the people by judicial fiat, by four justices in 
Massachusetts, of all places. The laws of this country, the laws of 
every State in the Nation, will be amended to allow for same-sex 
marriage absent our action. The two distinguished Senators from 
California, and the distinguished Senator from Wisconsin, Mr. Feingold, 
and many others, do not address this likelihood in the least--not in 
the slightest.
  As Senator Daschle is aware, the people of South Dakota are adamantly 
opposed to judicial amendment of their traditional marriage laws, and I 
suppose in most other States as well--in fact, every other State. For 
that reason, he has said he opposes same-gender marriage. But what 
happens when a gay couple moves from Massachusetts to South Dakota and 
seeks to have its union recognized? On this point, which is really the 
only question in this debate, he and his allies fall silent. What 
happens? Under the full faith and credit clause, that marriage is going 
to have to be recognized.
  Unfortunately, the will of those citizens will not matter in the 
least to a judiciary bent on securing same-gender marriage throughout 
the land. We have demonstrated through our discussion of the Lawrence 
case, the Romer case, and the Defense of Marriage Act, that the courts 
are ready to act. It is telling

[[Page 15346]]

that in a constitutional debate we have not heard one peep from the 
opposition about these relevant legal precedents.
  I can understand how these discussions might make the opposition 
uncomfortable. Their lesson is clear. Same-gender marriage will replace 
traditional marriage unless we act. It is that simple.
  And you folks out there watching this, you better tell your Senators 
they better act on this or traditional marriage is going to bite the 
dust because of four activist, liberal justices from Massachusetts who 
had one more vote than the three who voted against them.
  When we see cracks in a dam, we take steps to repair those cracks. We 
do not wait until the dam breaks and we have to build a new one. Well, 
the only way to repair the current legal situation on marriage is to 
pass a constitutional amendment. I wish it was not, but it is.
  My colleagues are not addressing the legal concerns. Instead of 
arguing about the Constitution, some of them have taken cheap shots and 
contend that we are engaging in discrimination. Come on. We are in the 
21st century. I don't know of anybody in this body who engages in 
discrimination. Certainly I don't.
  Does this mean more than three-fourths of the States are bigoted? 
That is how many enacted the Defense of Marriage Act to preserve 
traditional marriage. Does this mean the vast majority of the American 
people are bigoted? Or that Senators John Kerry and John Edwards are? 
Of course not. What about Rev. Walter Fauntroy, former Member of 
Congress, the African-American pastor of Washington's New Bethel 
Baptist Church, and Bishop Wilton Gregory, the African- American 
president of the United States Conference of Catholic Bishops? The 
answer to all of these is no. Similarly, I do not think it is proper to 
conclude that the more than 60 percent of Senator Boxer and Feinstein's 
own constituents who voted for traditional marriage are bigots either. 
They are not.
  Those making these slanderous accusations are well aware that many of 
those in favor of an amendment have frequently pursued legislation to 
protect the rights of gay citizens. Our attempts to protect traditional 
marriage laws have nothing to do with the private choices of gay and 
lesbian citizens; they have everything to do with the right of the 
American people to protect traditional marriage, which, in addition to 
its private elements, is a public institution with clear public 
purposes--namely, the rearing of future citizens. Our efforts simply 
seek to maintain the right of the American people to decide this issue 
for themselves through their elected representatives, which will be 
taken away from them if we allow the Supreme Court of Massachusetts to 
dictate this rule of law to every State in the Union.
  My colleagues making these arguments might want to at least look at 
article V of the Constitution. An amendment only becomes law once 
three-quarters of the States agree to it. In short, the States are the 
integral part of the amendment process. I have stopped trying to make 
sense of some of these so-called arguments of those opposed to 
protecting traditional marriage, but this one, that an amendment that 
requires the consent of the States would undercut the rights of the 
States, is particularly galling.
  There is no going back now. This issue will be decided one way or 
another. Either the American people will amend the Constitution to 
protect traditional marriage or the courts will ignore the expressed 
commitments of citizens in every State and amend the Constitution to 
require same-gender marriage. The choice is ours.
  I simply don't understand how the opposition can seriously claim that 
this issue does not merit our attention. I suggest it is one of the 
most important issues to ever come before either body of Congress. 
Without self-government, all of our other rights are for naught. That 
is exactly what is at stake. We are expanding rights through this 
amendment. We are further securing the rights of democratic communities 
to decide this most important of social policies on their own, rather 
than having them stripped from them by unaccountable and 
unrepresentative judges.
  Let me make this last point absolutely clear: We are not restricting 
rights with this amendment. We are expanding the rights of democratic 
communities to decide issues for themselves.
  Before I close, I would like to go through a few of these charts 
because I believe they make the case very well. This first chart says, 
``Not one legislature has voted to recognize same-sex unions.'' Think 
about it. In 1996, not one had voted to recognize same-sex unions, not 
one. All of the blue stands for the zero. But in 2004, we now have 46 
States with same-sex married couples from Massachusetts and some of 
these other rogue jurisdictions. As you can see, there are very few 
States--only four--that do not have it: Maine, West Virginia, 
Louisiana, and Montana. Every other State has same-gender marriages 
within those States that will have to be recognized under the full 
faith and credit clause against the wishes of those particular States.
  Look at this next chart: ``States that define marriage as a union 
between a man and a woman.'' The red States or orange States are States 
that define marriage as the union between a man and a woman. The only 
ones that do not are Oregon, New Mexico, Wisconsin, New Jersey, 
Connecticut, Rhode Island, Massachusetts, and New York. They are the 
only States that have not defined marriage as only between a man and a 
woman. All other States have done that, including Alaska and Hawaii, 
the two that are out in the ocean there. That is a very telling chart. 
We have these people saying: We are taking the rights away from the 
people to decide these things. No. We are taking the rights away from 
the courts to tell everybody in America what they should do, and all 
these States that have enacted traditional marriage laws, all of these 
States are going to be overruled by four liberal, activist, radical 
justices on the Massachusetts Supreme Court.
  Look at what Kevin Cathcart of Lambda Legal, one of the leading gay 
rights organizations, said:

       We won't stop until we have [same-sex] marriage nationwide.

  Justice Scalia was very prescient when he said:

       The Lawrence decision leaves on pretty shaky grounds State 
     laws limiting marriage to opposite-sex couples.

  Evan Wolfson, director of Freedom to Marry, another gay rights 
organization, said:

       But when Scalia is right, he's right. We stand today on the 
     threshold of winning the freedom to marry. This is a big 
     issue.

  Professor Laurence Tribe, highly respected liberal spokesperson for 
the liberal cause, constitutional law professor at Harvard Law School, 
a person I personally enjoy listening to, very bright, very fine 
teacher, he had this to say:

       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.

  Now, one last one here. This last one shows States with pending court 
cases involving same-sex marriage. The ones that are in the rust color, 
you will notice, are States with pending court cases involving same-sex 
marriage. These are the States where already we have pending cases: 
Washington, Oregon, California, New Mexico, Wisconsin, Indiana, 
Florida, North Carolina, West Virginia, Pennsylvania, Maryland, 
Delaware, New Jersey, New York, Vermont, and Massachusetts. Those are 
States where we already have pending cases forcing this on those 
States. I suppose that most all the others will, too, but they may not 
have to go into all the other States because any one of those States 
could also impose this, as Massachusetts has done as well.
  We are talking about a very important issue, and that is that gays 
should have a right to their own way of living. I would certainly stand 
up to try and do what is right and fair for gay people in our society. 
I have. I have done it and taken a lot of criticism for having done so. 
I have been right to do so. But they should not have a right to 
redefine traditional marriage through four

[[Page 15347]]

activist, liberal justices in the State of Massachusetts imposing their 
will on all of America because of the full faith and credit clause.
  Even though 40 States have adopted the Defense of Marriage Act, most 
constitutional scholars agree that the Defense of Marriage Act will be 
ruled by these cases unconstitutional, and thus every State in the 
Union, against the will of the people, will have to recognize gay 
marriage, or will have their concepts of traditional marriage, which 
have been uniform throughout the country just blasted into 
smithereens--all, again, because of a liberal court in Massachusetts.
  I hate to say this, but it is true. Our colleagues on the other side 
want liberal judges. The reason is because liberal judges can enact 
legislation from the bench. You will notice the word ``legislation'' 
should never be part of the judging process. But they can and will 
enact legislation, as these Massachusetts judges have done, which these 
liberals could never get through the elected representatives of the 
people in a million years. They don't want the people to decide this. 
They want the courts to decide it. That is what they say when they say 
they believe in States rights--that Massachusetts should determine for 
all of America how marriage should be defined.
  As you can see, we are in a plethora of lawsuits. It is not going to 
stop until we take the bull by the horns and pass a constitutional 
amendment. I think most people would acknowledge that this amendment 
does not have the votes at this point; it doesn't have 67 votes. But 
this debate is very important. I don't know of a more important debate 
in our country's history. If we undermine traditional marriage in our 
society, I think we are going to regret it.
  I don't think judges should determine the sociology of our society. I 
don't think they should be legislating from the bench. I don't think 
judges should be making these decisions unilaterally, and a 4-to-3 
decision was made in this particular case. I think the people ought to 
make this decision. We know that 40 States have already adopted the 
Defense of Marriage Act, which is likely to be struck down. I believe 
the other 10 States will adopt it before it is all over. This was done 
by four activist judges in Massachusetts versus three others who are 
also liberals, but they would not go as far as to strike down 
traditional marriage.
  I yield the floor.
  The PRESIDING OFFICER. The Senator from New York is recognized.
  Mrs. CLINTON. Mr. President, I have listened with great interest to 
the debate over the last several days. I believe there are many sincere 
positions being advocated on this floor on really all sides of this 
issue, because there are many sides. This is an incredibly important 
and quite solemn responsibility that we have before us.
  S.J. Res. 40, this joint resolution, proposes an amendment to the 
Constitution of the United States relating to marriage. So maybe even 
more than the usual debate, this calls for each of us to be engaged, to 
be accurate, and to be thoughtful about the positions we take with 
respect to this proposed amendment.
  Now, a number of my colleagues have come to the floor to speak about 
the solemn responsibility that we hold in our hands with respect to 
amending our Constitution. I am in agreement that the Constitution is a 
living and working, extraordinary human accomplishment that protects 
our citizens, grants us the rights that make us free, and we in this 
body took an oath; we swore to defend and protect the Constitution of 
the United States.
  So to consider altering this document, one of the greatest documents 
in the history of humanity, is a responsibility no Member can or should 
enter into lightly, for what we do here will not only affect our fellow 
citizens in the year 2004, but it will affect every generation of 
Americans to come.
  As Henry Clay once observed:

       The Constitution of the United States was made not merely 
     for the generation that then existed, but for posterity--
     unlimited, undefined, endless, perpetual posterity.

  So we do owe an obligation to those we represent today and to future 
generations as we embark upon this very solemn undertaking. We should 
not amend the Constitution to decide any issue that can and will be 
resolved by less drastic means. We should not amend the Constitution to 
federalize an issue that has been the province of the States since our 
founding--in fact, as Senator Kennedy reminded us, even before our 
founding as a nation.
  I believe marriage is not just a bond but a sacred bond between a man 
and a woman. I have had occasion in my life to defend marriage, to 
stand up for marriage, to believe in the hard work and challenge of 
marriage. So I take umbrage at anyone who might suggest that those of 
us who worry about amending the Constitution are less committed to the 
sanctity of marriage, or to the fundamental bedrock principle that 
exists between a man and a woman, going back into the midst of history 
as one of the foundational institutions of history and humanity and 
civilization, and that its primary, principal role during those 
millennia has been the raising and socializing of children for the 
society into which they become adults.
  Now, if we were really concerned about marriage and the fact that so 
many marriages today end in divorce, and so many children are then put 
into the incredibly difficult position of having to live with the 
consequences of divorce, perhaps 20, 30 years ago we should have been 
debating an amendment to the Federal Constitution to make divorce 
really, really hard, to take it out of the States' hands and say that 
we will not liberalize divorce, we will not move toward no-fault 
divorce, and we will make it as difficult as possible because we fear 
the consequences of liberalizing divorce laws.
  If one looks at the consequences of the numbers of divorces, the 
breakup of the traditional family, you could make an argument for that. 
If we were concerned about marriage, why were we not concerned about 
marriage when marriage was under pressure over the last decades because 
of changing roles, because of changing decisions, because of the laws 
in the States that were making it easier for people--husbands, wives, 
mothers, and fathers--to get divorced?
  We searched, and I don't see anyone in the history of the Senate or 
the House who put forward an amendment to try to stop the increasing 
number of divorces in order to stem the problem and the difficulties 
that clearly have been visited upon adults certainly but principally 
children because of the ease of divorce in this society over the last 
decade. We didn't do that.
  We could stand on this floor for hours talking about the importance 
of marriage, the significance of the role of marriage in not only 
bringing children into the world but enabling them to be successful 
citizens in the world. How many of us have struggled for years to deal 
with the consequences of illegitimacy, of out-of-wedlock births, of 
divorce, of the kinds of anomie and disassociation that too many 
children experienced because of that.
  I think that if we were really concerned about marriage and that we 
believed it had a role in the Federal Constitution, we have been 
missing in action. We should have been in this Chamber trying to amend 
our Constitution to take away at the very first blush the idea of no-
fault divorce, try to get in there and tell the States what they should 
and should not do with respect to marriage and divorce, maybe try to 
write an amendment to the Constitution about custody matters. Maybe we 
should have it be a presumption in our Federal marriage law that joint 
custody is the rule. Maybe we ought to just substitute ourselves for 
States, for judges, for individuals who are making these decisions 
every single day throughout our Nation.
  We did not do that, did we? Can any of us stand here and feel good 
about all of the social consequences, the economic consequences? We 
know divorce leads to a lowered standard of living for women and 
children. Then, of course, if we were to deal with some of the 
consequences of out-of-wedlock births, the lack of marriage, we could 
have addressed that in a constitutional amendment. Perhaps we should 
have

[[Page 15348]]

amended the Constitution to mandate marriage.
  Is it really marriage we are protecting? I believe marriage should be 
protected. I believe marriage is essential, but I do not, for the life 
of me, understand how amending the Constitution of the United States 
with respect to same-gender marriages really gets at the root of the 
problem of marriage in America. It is like my late father used to say: 
It is like closing the barn door after the horse has left.
  We hear all of these speeches and see these charts about the impact 
on marriage. We are living in a society where people have engaged in 
divorce at a rapid, accelerated rate. We all know it is something that 
has led to the consequences with respect to the economy, to society, to 
psychology, and emotion that so often mark a young child's path to 
adulthood.
  So what are we doing here? Some say that even though marriage has 
been under pressure--which, indeed, it has--and has suffered because of 
changing attitudes toward marriage now for quite some years, even 
though most States are moving as rapidly as possible to prohibit same-
gender marriages, we have to step in with a Federal constitutional 
amendment.
  The States, which have always defined and enforced the laws of 
marriage, are taking action. Thirty-eight States--maybe it is up to 40 
now--already have laws banning same-sex marriage. Voters in at least 
eight States are considering amendments to their constitutions 
reserving marriage to unions between a man and a woman. But the 
sponsors argue that we have to act with a Federal constitutional 
amendment because the full faith and credit clause of the Constitution 
will eventually force States, if there are any left, that do not wish 
to recognize same-sex marriages to do so.
  That is not the way I read the case law. With all due respect, the 
way I read the case law is that the full faith and credit clause has 
never been interpreted to mean that every State must recognize every 
marriage performed in every other State. We had States that allowed 
young people to marry when they were 14, and then States that allowed 
young people to marry when they were 16 or 18. The full faith and 
credit clause did not require that any other State recognize the 
validity of a marriage of a person below the age of marital consent 
according to their own laws.
  Every State reserves the right to refuse to recognize a marriage 
performed in another State if that marriage would violate the State's 
public policy. Indeed, the Supreme Court has long held that no State 
can be forced to recognize any marriage. That is what the case law has 
held. But just to make sure there were no loopholes in that case law, 
the Congress passed and the President signed the Defense of Marriage 
Act, known as DOMA.
  The Defense of Marriage Act has not even been challenged at the 
Federal level, and because the Supreme Court has historically held that 
States do not have to recognize laws of other States that offend their 
public policy, it is assumed that any challenge would be futile.
  So what is it we are really focused on and concerned about here?
  If we look at what has happened in the last several months--and there 
are others in this body who are more able to discuss this than I 
because it affects the laws of their States--as Senator Kennedy said, 
in Massachusetts, a court decision will be challenged by a referendum. 
In California, San Francisco's action permitting the licensing of same-
sex marriages was stopped by the California State courts. The DOMA law 
that was enacted already protects States from having to recognize same-
sex marriage licenses issued in other States.
  So I worry that, despite what I do believe is the sincere concern on 
the part of many of the advocates of this amendment, they have rushed 
to judgment without adequate consideration of the laws, the case laws, 
the actions of the States, and that their very earnest, impassioned 
arguments about marriage have certainly overlooked the problems that 
marriage has encountered in its present traditional state within the 
last several decades in our country.
  The PRESIDING OFFICER (Mr. Talent). The time of the Senator has 
expired.
  Mrs. CLINTON. Mr. President, I ask unanimous consent for 2 more 
minutes.
  The PRESIDING OFFICER. Without objection, it is so ordered.
  Mrs. CLINTON. Mr. President, we all know this amendment is not likely 
to pass at this time because concern for our Constitution and the 
solemn responsibility that falls to us with respect to amending it is a 
bipartisan concern. There are many on the other side who will not 
tamper with the Constitution to deal with the heated politics of the 
moment. Yet we are taking precious time away from other matters about 
which I worry, about which I am concerned, most profoundly the 
challenges we confront from our adversaries in al-Qaida and elsewhere 
who we know are plotting and planning against us.
  I hope that once we hold the vote tomorrow--and the States continue 
to do what the States are doing--that we will get back to the business 
of both protecting and serving the American people and solving the 
problems they confront each and every day. Maybe we can come to some 
agreement that the Founders had it right and that the concerns that 
have been expressed about marriage will be taken care of as they 
traditionally have in the States which have held the responsibility 
since before our founding as a nation.
  I thank the Chair. I yield the floor.
  The PRESIDING OFFICER. The Senator from New York yields the floor. 
The Senator from Colorado.
  Mr. ALLARD. Mr. President, I yield 15 minutes to the Senator from 
Oklahoma, the chairman of our Budget Committee and somebody I would 
like to recognize in a public way for all of the hard work he has 
provided for us in the Senate, particularly his hard work on the budget 
as the chairman of the Budget Committee.
  The PRESIDING OFFICER. The Senator from Oklahoma is recognized for 15 
minutes.
  Mr. NICKLES. I thank my colleague from Colorado for yielding. I 
compliment Senator Allard for his work on this amendment and on this 
issue. It is a very important issue.
  I also compliment Senator Hatch for the very fine statement he made 
earlier, as well as Senators Santorum, Sessions, and Cornyn. Several of 
our colleagues have made very eloquent remarks about this amendment and 
about the fact that marriage is under attack. I want to come at it from 
a little different perspective.
  I was the principal sponsor of the Defense of Marriage Act, which 
passed and was signed into law by President Clinton in 1996. I heard my 
very good friend from Minnesota, Senator Dayton, mention that this is 
about politics, and I wanted to inform him as the sponsor of DOMA, the 
Defense of Marriage Act, it was not about politics in 1996, it was 
because in 1996 the Hawaiian Supreme Court was getting ready to 
legalize same-sex marriage, and under the general understanding of full 
faith and credit, if they recognized it, there would be a lot of same-
sex couples running to Hawaii to be married and they would return to 
other States and those States would be required to recognize it.
  We thought that was a serious mistake. We did not want that mixed 
court decision in Hawaii to become the law of the land. So we passed 
the Defense of Marriage Act. It passed by a vote of 85 to 14.
  I notice several of the people who are arguing against a 
constitutional amendment are arguing for States rights. Several of the 
people who have argued against this amendment also debated and voted 
against the Defense of Marriage Act, which was basically a States 
rights approach to the solution.
  Now, let us frame this as an issue. Marriage is under attack. It is 
under attack in several respects. It is under attack by a liberal court 
in Massachusetts which wants to redefine marriage, including same-sex 
couples. They were not elected. It is under attack by mayors in some 
cities: the mayor of San Francisco, and the mayor of New Paltz, NY.

[[Page 15349]]

  They wanted to legalize or grant licenses to same-sex couples. It 
happened to be against the law in the State of California. It is very 
interesting that a newly elected mayor would decide to defy State law, 
actually break State law, but he was doing it and gained great 
notoriety. He was on TV most every day. Then a mayor in New Paltz, NY, 
wanted to do the same thing. I am not sure what the State law in New 
York is. But marriage is under attack as defined by this Congress. The 
Defense of Marriage Act says marriage is between a man and a woman, and 
yet we had either an unelected court or mayors saying, no, they know 
better.
  So if it is under attack, how is it protected? Is it protected better 
by a statute or by a constitutional amendment? That is a legitimate 
debate, and I respect people who say we have the Defense of Marriage 
Act, but many of the people who are making that claim voted against the 
Defense of Marriage Act, so I question whether they really believe in 
States rights or they are using it at this particular point. But it is 
under attack.
  What has happened differently between now and when the Defense of 
Marriage Act passed in 1996, one decision was the Lawrence decision. 
Every once in a while I will sit in on a Supreme Court debate. I sat in 
just a month ago on the question on the Pledge of Allegiance, whether 
we could actually have in the Pledge of Allegiance ``one Nation under 
God.'' In that case, the Ninth Circuit Court, which makes a lot of very 
absurd rulings, said we should not have ``one nation under God.'' 
Thankfully, the Supreme Court rejected that argument. I enjoyed 
listening to that debate.
  I wish I had attended the Lawrence v. Texas debate because I am 
absolutely astounded at their conclusion. Senator Santorum deserves 
great credit because he took a lot of flak, but he denounced that 
decision. He denounced it strongly, and he was right. I did not pay 
enough attention to the Lawrence decision, nor to the Texas statute, 
which probably should have been overturned or should have been repealed 
by the Texas legislature. Possibly that is a debate for another day. 
They went a lot further than just dealing with the Texas statute.
  In the Lawrence case, the Supreme Court found:

       . . . a State's governing majority has traditionally viewed 
     a particular practice as immoral is not sufficient reason for 
     upholding a law prohibiting the practice . . .

  Sorry about that, States, sorry if you had morality as part of the 
reason you are legislating, but the Supreme Court thinks that may not 
be enough.
  That is a very troubling case. I have heard a lot of constitutional 
scholars and others say because of the Lawrence case the Defense of 
Marriage Act would probably be determined unconstitutional. I hope they 
are wrong.
  The Defense of Marriage Act passed with 85 votes. I hope the Supreme 
Court will pay attention to the fact that it passed with 85 votes. That 
was not 51 to 49. So if they are going to overturn the Congress--
incidentally, it passed in the House by an overwhelming margin, even 
greater than that, I believe. So I hope it will not be determined 
unconstitutional. But the Lawrence case does mean marriage is under 
attack.
  When there is a mayor of San Francisco who decides in spite of State 
law that he is going to start granting marriage licenses or a mayor in 
New York or by a 4-to-3 decision in the State of Massachusetts--all of 
those things have happened since the Defense of Marriage Act passed. So 
it really boils down to which body, which element of our democracy is 
going to be making this decision? If we are going to redefine marriage 
and say that it is legal between same-sex couples, should that not be 
decided by State legislatures and/or elected Federal officials? It 
certainly should not be decided by an unelected 4-to-3 decision in one 
liberal court in the country. So to stop that 4-to-3 decision, 
particularly given the fact that there is a Supreme Court decision 
which seems to give credibility to that decision, maybe a 
constitutional amendment is in order. My guess is it probably will not 
pass until they do overturn the Defense of Marriage Act, and then I 
believe there really will be a revolt around the country. Then it might 
get the necessary two-thirds vote in both Houses of Congress and be 
ratified by three-fourths of the States.
  Our forefathers showed great wisdom in making it very difficult to 
amend the Constitution. It has only been amended 27 times--only 17 if 
we take out the Bill of Rights--in the last 228 years. That is pretty 
remarkable. They made it very difficult to amend the Constitution.
  We are dealing with something very fundamental when we are talking 
about how marriage is defined. Marriage is a very esteemed union 
between a man and a woman, a contract with Government recognition, with 
benefits, a sacred union, a sacrament in some religions, a very special 
relationship, not to be changed or altered, frankly, by a 4-to-3 
decision, by an unelected court, trying to redefine something so 
important. It should be decided by elected officials.
  So we have a process. We have the statute process, which we have 
done, and we have a constitutional process which may be necessary in 
light of the Lawrence decision and in light of the State of 
Massachusetts, in light of the mayor of San Francisco, in light of 
mayors in other places around the country who wish to make such a 
fundamental change and do it without authority, without election, 
without backing.
  In the State of Hawaii, when the State supreme court there tried to 
redefine marriage, there was an uproar and basically they passed a 
constitutional amendment that allowed the legislature to define 
marriage. The legislature defined marriage as a union between a man and 
a woman. The legislature stopped it.
  Hopefully maybe legislative action would be enough, but my concern is 
that in spite of the fact that 38 States have passed identical 
legislation to DOMA, in spite of the fact that 4 additional States have 
passed something very close to it, 42 out of 50 States passing 
legislation basically defining marriage as between a man and a woman, 
is that there still might be a 4-to-3 decision that becomes the law of 
the land because of what I believe is an absurd decision based on the 
Lawrence decision. I hope that is incorrect, but I do want to fight to 
defend marriage as between a man and a woman. That can be done 
constitutionally. It can be done statutorily. I do think that people, 
through their elected officials, should be making this decision instead 
of an unelected 4-to-3 decision in a court. This is vitally important.
  So, again, I compliment my colleague, Senator Allard, for his 
leadership on this issue. I hope people will take this very seriously. 
The benefits of marriage are great. Undermining marriage has great 
negative consequences for our country, and I hope our colleagues will 
weigh those decisions very closely and at least support the motion to 
proceed. It is a legitimate debate as to whether the amendment should 
be one sentence or should it be two sentences, should it be rewritten 
or tweaked one way or another. We will not know unless we pass the 
motion to proceed. So I urge our colleagues to support the motion to 
proceed in tomorrow's vote.
  Mr. ALLARD. Mr. President, I thank the Senator from Oklahoma for a 
very fine statement. He brings a special perspective to this debate 
because he was the initial sponsor of the Defense of Marriage Act.
  Mr. McCAIN. Will the Senator yield for a unanimous consent request?
  Mr. ALLARD. I yield to the Senator from Arizona.
  Mr. McCAIN. I ask unanimous consent I be allowed to follow the 
Senator from Kansas for a period of 12 minutes.
  Mr. JEFFORDS addressed the Chair.
  The PRESIDING OFFICER. The Senator from Vermont is recognized.
  Is there an objection to the unanimous consent request?
  Mr. JEFFORDS. Mr. President, I have another engagement I am supposed 
to be at now.
  Mr. ALLARD. I do not believe it is going to interfere with you. You 
are next, then I think Senator Brownback.
  Mr. McCAIN. You are up. Then I asked unanimous consent to follow the 
Senator from Kansas.

[[Page 15350]]


  Mr. ALLARD. You are next.
  The PRESIDING OFFICER. Without objection, it is so ordered.
  The Senator from Vermont is recognized.
  Mr. JEFFORDS. Mr. President, I find it sad and unfortunate that the 
Senate is spending crucial time on this divisive issue, driven so 
obviously by partisan politics rather than sound public policy. We know 
this amendment has no chance of passage, so why are we here? Just a 
week after Secretary Ridge detailed the real threats that the Nation 
faces right here at home, why are we instead debating the vague and 
questionable dangers to the institution of marriage. We should be 
working to fund homeland security, but that bill languishes while we 
launch into a cultural war.
  As of today, the Senate has passed only 1 of the necessary 13 
appropriations bills for fiscal year 2005. We need to fund veterans 
health care, educational programs, worker protection, job training, 
Head Start, environmental preservation, crop insurance, and food 
safety. We need to reauthorize our Nation's welfare programs. Our 
highways crumble while the Transportation bill is stalled and we take 
no action.
  These are the priorities of the American people. But instead of 
facing these most basic responsibilities, we are here today to make 
judgment calls about people's personal lifestyles. I must ask, where 
are the priorities of the majority leadership? How is it that we have 
to come to use the Senate floor as a warmup for political conventions, 
bowing to extreme religious agendas rather than the agenda of the 
American people? How did this happen?
  I am afraid the answer can be summed up very easily. We are here 
because of election year posturing.
  I find it ironic that some in this Chamber want to amend our Nation's 
most sacred and historic document because of some unfounded and 
irrational fear. It is ironic because these are the same people who 
have argued that we should not trample on States rights. Yet they think 
our States are not capable of deciding how marriage should be defined. 
I believe our States are not only capable but deserving to define 
marriage in the way they see fit. Every State will bring its own 
approach, and I am proud the way my State led the Nation in addressing 
this issue more than 4 years ago.
  The Vermont Legislature, a part-time body made up of farmers and 
teachers, passed the civil unions legislation. They gave gay and 
lesbian couples all the same legal rights extended to married couples, 
and the legislature did so in a bipartisan fashion, amid rancorous 
protests by some who proclaimed Vermont's lawmakers will suffer dire 
consequences as a result of this decision.
  I can tell you today that all of these fears have been unfounded, and 
my home State is better off for the experience. Having witnessed 
Vermont's approach, I beg to differ with anyone in this body who argues 
that States are not able to decide this issue for themselves. Here in 
the Senate we should be spending our time debating legislation that is 
inclusive, not exclusive. This body did so when it recently passed a 
hate crimes bill to extend the definition of hate crimes to those who 
are targeted solely on sexual orientation, gender, or disability.
  We should be focusing our energies on passing bills such as the 
Employment Nondiscrimination Act and the Domestic Partner Health 
Benefits Equity Act. I am proud to support these bills, and I am even 
more proud because they continue in the great American tradition of 
inclusiveness and tolerance and acceptance.
  I will vote against this constitutional amendment, and I urge the 
majority leadership to take up, rather than push aside, the critical 
pending legislation that so desperately needs and calls for our 
attention.
  I yield the floor.
  The PRESIDING OFFICER. The Senator from Colorado is recognized.
  Mr. ALLARD. Mr. President, I yield 15 minutes to the Senator from 
Kansas. I compliment him in a public way for his leadership on this 
very important issue.
  The PRESIDING OFFICER. The Senator from Kansas is recognized for 15 
minutes.
  Mr. BROWNBACK. I thank the Senator from Colorado for his leadership 
in putting this issue before the U.S. public and before the world. This 
is something we need to debate.
  I want to specifically address the argument that is being put forward 
so often from the other side that we do not need to do this now; there 
is no fire burning; there is no particular issue that is going on here; 
the States can easily handle this; just let them handle it and take 
care of it; we do not need to do this until the Supreme Court takes it 
up.
  I want to talk about, Why do we need to take this up now? 
Fortunately, we have a case study. People who went to business school, 
went to law school, learn through case studies. You study a case, study 
what took place, and you try to analyze what happened there to figure 
out what could have been done better, what should have been done, what 
was done, and what was its impact.
  We have an excellent case study in the Netherlands on what is taking 
place when this sort of debate occurs. The reason it is important to 
engage this debate now and not wait until after the Supreme Court might 
rule, or after this goes through a number of States, is because of what 
they went through in the Netherlands.
  I want to talk about one chart, the out-of-wedlock birth rates in the 
Netherlands, 1970-2003.
  You can see it does not have a favorable trendline. In 1970, it is 
down around 2 percent. Indeed, the Netherlands was noted for a long 
period of time for having a very low out-of-wedlock birth rate, and 
among European countries they were highly regarded for that. Even 
though it was an open society, it had a very low out-of-wedlock birth 
rate. People had children in wedlock.
  Then you can see in 1980 this thing starts rocketing and really 
taking off. What took place in the Netherlands--and I am going to have 
quotes from some Dutch scholars that just recently came out. We have 
the material from Stanley Kurtz that a number of people talked about. 
But what happened there was this ongoing debate for a period of about 
10 years before same-sex marriage passed in the Netherlands, this 
public debate about, you know, we can have different sorts of family 
arrangements, we can have registered partnerships. They had that before 
same-sex marriage passed.
  We had symbolic marriage registers for same-sex couples. We had the 
first supreme court case loss, first court case loss--and what we had 
was just this debate and discussion with the society, the culture, over 
a period of years saying we can separate this issue of raising children 
and the issue of marriage. We can have marriages just be an expression 
of care and concern and love for each other without really considering 
or thinking about what it is, the union of man and woman and raising 
children together.
  We now have social science data. We have discussed a lot on this 
floor that the best place to raise a child is in a family with a man 
and woman, a husband and wife, bonded together for life in a low-
conflict marriage. We know that is the ideal place. We have discussed 
that. The social science data is clear on it.
  Yet what you saw take place here as you engage this debate and 
society started talking to itself, reforms and court orders, we saw 
society saying it is not that critical how marriage is organized in 
looking at children. It is more about the adults than about the 
children. Let us open this institution.
  What took place was you had this huge growth to where it is up to 30 
percent of children born out of wedlock in the Netherlands in 2003 from 
the 1980 total here at 5 percent over that period of time.
  What do scholars say about this? Dutch scholars are actually saying 
we have to figure some way to try to reinstitute the notion and the 
nature of traditional marriage. The marriage between a man and woman, 
raising children in this type of household, is the best place for us to 
do that.

[[Page 15351]]

  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.
  Again, this ongoing debate about marriage isn't about forming this 
bond and a family unit. It is how two people express love for one 
another, and then that started permeating and getting into society.
  One of the signatories, Dutch law professor M. Van Mourik, said that 
``the reputation of marriage as an institution--in Holland--is in 
serious decline.'' The decision to legalize gay marriage, said Mourik, 
should certainly have never 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, believes 
gay marriage has contributed to a decline in the reputation of Dutch 
marriage. It is ``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.''
  My point in saying this and addressing the concerns from the other 
side that it is not particularly timely, we need to do work on other 
things, is if we don't engage and discuss this and talk about the 
importance of marriage and the natural union and raising children in 
that setting, you will see society say, I guess it doesn't matter, 
these things are separate. And you will see this taking place more 
where we have slowed down and stopped the rise in out-of-wedlock births 
in the United States. This isn't something that has been charting up 
for a long term here, and that has been capped and started back down.
  Now we are pushing in a welfare reform bill--a discussion about 
marriage and the welfare reform bill--because we know it is the best 
place to raise children. It will result in a healthier relationship for 
a man and a woman on a long-term basis. People will live healthier, 
longer, and happier.
  We don't want this to happen in the United States. The case study is 
here, and we look at the incredible social experiment--something that 
has not been done in societies for 5,000 years. We are talking about 
putting that in society. We need to push back and say no, this is not 
good for children. It is not good for families. It is not good for 
America, nor the American culture.
  I urge my colleagues when they say this isn't timely to look at what 
has happened in the case study we have. If this isn't discussed at a 
very early stage and people say, no, this is not the way we want to go, 
then you will get this rise taking place and the situation none of us 
want and that everybody agrees is not good for the children. I think 
one has to ask oneself in this debate, where are we going to focus? Are 
we going to focus on raising the next generation or are we going to 
focus on other issues? I think clearly the right focus for legislators 
in looking to build a good, strong society in the future is to focus on 
that next generation.
  I thank my colleague from Colorado for leading this debate. I thank 
the Chair and yield the floor.
  The PRESIDING OFFICER. Under the previous order, the Senator from 
Arizona is recognized.
  Mr. McCAIN. Mr. President, I may require 15 minutes. I ask unanimous 
consent to extend from 12 to 15 minutes.
  The PRESIDING OFFICER. Without objection, it is so ordered.
  Mr. McCAIN. Mr. President, most Americans believe, as I do, that the 
institution of marriage should be reserved for the union of a man and a 
woman. But only a very small majority, and perhaps not quite a 
majority, support the idea--at this time--of amending the Constitution 
to prohibit the States from changing the legal definition of marriage 
to include any union other than that between a man and a woman. I know 
that Americans who support a Federal marriage amendment feel very 
strongly that same sex marriages judged lawful by the Supreme Court of 
the Commonwealth of Massachusetts, and permitted, for a brief period, 
unlawfully, in certain other localities, threaten the institution of 
marriage as a core value of our culture. I know also that many of the 
opponents of the amendment believe it is purposely divisive, 
discriminatory and intended to deny some Americans their right to the 
pursuit of happiness. And I know that many, many of those Americans who 
do not presently support the amendment, but oppose same-sex marriage do 
not perceive it is urgently necessary to address this issue by means of 
amending the most successful and enduring political compact in human 
history.
  This close division of public opinion assures us one thing. A Federal 
marriage amendment to the Constitution will not be adopted by Congress 
this year, nor next year, nor anytime soon until a substantial majority 
of Americans are persuaded that such a consequential action is as 
vitally important and necessary as the proponents feel it is today. It 
is perfectly appropriate for Americans who do feel that strongly today 
to call the offices of their elected representatives and urge them to 
support the amendment. But their efforts would be better spent trying 
to convince a supermajority of the public to share their urgency 
because until they do there will not be a supermajority in Congress and 
among State legislatures willing to amend our Constitution.
  By my count, there is not at this time even a small majority of 
senators who would vote for Senator Allard's amendment, much less the 
67 votes required by the Constitution. That won't change unless public 
opinion changes significantly. The founders, wisely, made certain that 
the Constitution is difficult to amend, and, as a practical political 
matter, can't be done without overwhelming public approval. And thank 
God for that. Were it any easier I fear we could not make the claim for 
the Constitution's enduring success that I have just made.
  Many, if not most, Americans have reasoned that there is no 
overriding urgent need to act at this time. And they are right to do 
so. The legal definition of marriage has always been left to the states 
to decide, in accordance with the prevailing standards of their 
neighborhoods and communities. Certainly, that view has prevailed for 
many years in my party where we adhere to a rather stricter federalism 
than has always been the case in the prevailing views among our friends 
in the Democratic Party. Some fear that the decision in Massachusetts 
will ultimately result in the imposition of different views on marriage 
in communities where the traditional view of marriage is considered 
singular and sacred. But there really is insufficient reason presently 
to fear such a result.
  I supported the Defense of Marriage Act adopted by Congress and 
signed into law by President Clinton in 1996. As my colleagues know, 
the Defense of Marriage Act, DOMA, was proposed in response to a 
decision by the Supreme Court of the State of Hawaii which concluded 
that a law banning same-sex marriages may violate the Equal Protection 
Clause of Hawaii's constitution. DOMA provides States an exemption from 
the ``full faith and credit'' clause so that each State would be able 
to decide for itself whether to recognize same-sex marriage. The law 
neither compels a State to recognize a same-sex marriage from another 
State, nor does it prohibit States from recognizing such marriages. It 
simply protects each State's right to choose how it will define 
marriage. Currently, 39 States have defense of marriage laws in place. 
And thus far, there has yet to be a successful challenge to DOMA in 
Federal Court.
  The Defense of Marriage Act represents the quintessentially 
federalist and Republican approach to this issue. The constitutional 
amendment we are debating today strikes me as antithetical in every way 
to the core philosophy of Republicans. It usurps from the states a 
fundamental authority they have always possessed, and imposes a

[[Page 15352]]

Federal remedy for a problem that most states do not believe confronts 
them, and which they feel capable of resolving should it confront them, 
again according to local standards and customs.
  If a constitution is to be amended, it should be a State 
constitution. According to a report by the Heritage Foundation, an 
organization not known for its liberal sympathies, ``the best way to 
defend against a state court that might seek to overturn State public 
policy or force recognition of another state's marriage policy is to 
amend the State constitution to establish a state constitutional 
marriage policy.'' At this time, 16 States have pending constitutional 
amendments to protect marriage, and at least 3 others are expected to 
introduce such amendments soon. Colleagues who have told me of actions 
taken in this city or that county to impose a legal definition of 
marriage that conflicts with the prevailing view of marriage in their 
State have a far less draconian remedy at hand to correct the injustice 
than amending the United States Constitution--it is in their state 
legislatures. What evidence do we have that States are incapable of 
further exercising an authority they have exercised successfully for 
over 200 years? The actions by jurists in one court in one state do not 
represent the death knell to marriage. We will have to wait a little 
longer to see if Armageddon has arrived. If the Supreme Court of the 
United States rejects the Defense of Marriage Act as unconstitutional; 
if State legislatures are frustrated by the decisions of jurists in 
more states than one, and if state remedies to such judicial activism 
fail; and finally, if a large majority of Americans come to perceive 
that their communities' values are being ignored and other standards 
concerning marriage are being imposed on them against their will, and 
that elections and state legislatures can provide no remedy then, and 
only then, should we consider, quite appropriately, amending the 
Constitution of the United States.
  I know passions run high on this issue. Americans who support the 
Federal marriage amendment do so very forcefully. They want this vote. 
But they should also know, and we should make sure they do know that it 
will never be adopted until many more Americans feel as strongly as 
they do. They have every right to demand a vote, even if the outcome is 
well-known. There are, of course, many other urgent priorities left to 
address in this Congress, not the least of which concern the physical 
security of this country, as Secretary Ridge has recently reminded us. 
But I have in the past supported legislation I knew lacked the 
necessary votes to prevail, and still insisted on a vote. In those 
cases, however, I had much broader public support for the legislation 
than exists for this proposed amendment. Still, I would normally be 
inclined to support any procedural motion to allow proponents their 
vote. But a procedural vote is unlikely to succeed, as we all know. 
That's why I supported the Democratic leader's offer of a unanimous 
consent agreement to allow an up or down vote on Senator Allard's 
amendment. I would very much like an up or down vote on the amendment. 
That offer was rejected, and it seems at the moment that the only vote 
on this issue that we're going to be allowed will be a procedural vote. 
I would not want to obscure my position on this issue by voting to 
proceed to the amendment, and then, following that vote's failure, 
having no further opportunity to take my stand by voting, and to be 
held accountable by my constituents for that vote. So, I am inclined at 
this time, if this will be our only vote in this debate, to cast a vote 
that reflects my position on the federal marriage amendment proposed by 
Senator Allard.
  I refer to Federalist Paper 45 to explain my vote, in which James 
Madison wrote ``the powers delegated by the proposed Constitution to 
the Federal Government, are few and defined. Those which are to remain 
in the State Governments are numerous and indefinite. The former will 
be exercised principally on external objects, as war, peace, 
negotiation and foreign commerce; with which last the power of taxation 
will for the most part be connected. The powers reserved to the several 
States will extend to all the objects, which, in the ordinary course of 
affairs, concern the lives, liberties and properties of the people, and 
the internal order, improvement and prosperity of the State.'' I stand 
with Mr. Madison on this question, and against a Federal marriage 
amendment that denies the States their traditional right and their 
clear opportunity to resolve this controversy themselves.
  I yield back the remainder of my time.
  The PRESIDING OFFICER. Who yields time?
  Mr. LEAHY. Mr. President, I oppose amending our Constitution with the 
Federal Marriage Amendment (FMA) because it interferes in a fundamental 
State matter, and, worse yet, it does so for the purpose of disfavoring 
a group of Americans. We have never amended our Constitution for that 
purpose, and we should not start now. The timing of this debate 
strongly supports my point that the FMA's supporters are concerned not 
with preserving the sanctity of marriage, but with preserving 
Republican politicians.
  I am disappointed that we are debating a divisive and mean-spirited 
amendment that violates the traditions of Federalism and local control 
that the Republican party claims to cherish. We should be upholding the 
commitment to tolerance that underlies our Constitution, not betraying 
it with a premature debate that we all know will yield nothing but 
division in this body and among the American people. I urge all 
Senators to honor our oath as Senators to ``support and defend the 
Constitution'' and not sacrifice it to this short-term partisan 
exercise.
  This debate risks great harm by casting States and gay Americans into 
second-class status and also harms the Senate. The Republican Senate 
leadership has shown contempt for the constitutional amendment process 
by bringing this proposed constitutional amendment directly to the 
Senate without the approval--or even the consideration--of the 
Judiciary Committee or its Constitution Subcommittee.
  The Senate and the Judiciary Committee have followed a consistent 
practice for the consideration of constitutional amendments in the 
past. Before a constitutional amendment receives floor consideration it 
is debated and voted on by both the Subcommittee on the Constitution 
and the Judiciary Committee as a whole. This is the process that the 
Senate is currently following for the amendment to ban flag 
desecration, an amendment that has been considered by the Senate on 
numerous occasions, and that we followed in conjunction with the crime 
victims rights constitutional amendment. By contrast, the Federal 
Marriage Amendment, which is being considered for the first time, was 
not debated or voted on in either the subcommittee or the full 
Committee, yet it is before us on the floor today.
  Past attempts to skirt Committee consideration of constitutional 
amendments, in the absence of an agreement between the parties, have 
drawn sharp condemnation. Twenty-five years ago, an amendment calling 
for direct election of the President and Vice-President was brought to 
the floor without Judiciary Committee approval. Senator Hatch, the 
then-ranking Republican member on the Constitution Subcommittee, said: 
``To bypass the committee is, I think, to denigrate the committee 
process, especially when an amendment to the Constitution of the United 
States of America, the most important document in the history of the 
Nation, is involved.'' The late Senator Thurmond said that ``if a bill 
of this nature is not going to be referred to a committee to consider 
it, I do not know why we need Committees in the U.S. Senate.'' In 1979, 
Senator Hatch said it was ``unconscionable to bring up legislation 
under these circumstances.'' Apparently what was ``unconscionable'' in 
1979 is applauded in 2004 so long as it is being done for partisan 
Republican purposes.
  I joined with all of my Democratic colleagues on the Judiciary 
Committee

[[Page 15353]]

in writing last month to the Chairman to request that this amendment go 
through the normal channels. That request was ignored by the Chairman 
and apparently rejected by the Senate Republican leadership as it 
chooses for its own benefit to change yet another longstanding practice 
of the United States Senate.
  The procedural treatment the Republican leadership is giving this 
proposed amendment to the Constitution of the United States is perhaps 
more appropriate for a resolution commemorating an organization's 
anniversary or a celebratory day, which are sometimes discharged from 
the Judiciary Committee without debate and agreed to by the full 
Senate. When we are dealing with a resolution designating something as 
universally accepted as ``National Girl Scout Week,'' it does not 
offend me to skip Committee consideration. But short cuts are not 
fitting when we are talking about amending our fundamental national 
charter.
  Perhaps cutting corners like this and its maneuvering reveals how the 
Republican leadership really sees this amendment. Perhaps this exercise 
is, after all, not intended as a serious effort to amend the 
Constitution--something deserving deliberate consideration and careful 
refinement during the Committee process. It seems that this forced 
exercise is intended instead as the legislative equivalent of a 
political bumper sticker, suddenly appearing on the Senate floor late 
in an election year.
  I assume that our longstanding practice was disregarded because the 
majority did not want to risk seeing the FMA defeated in committee. Or 
perhaps their decision to press this matter into debate, in spite of 
last week's terrorism warning, the unresolved intelligence failures and 
torture scandal and the lack of progress on a budget and Federal 
appropriations matters, was made hastily to fit the political calendar. 
Forcing a debate at this time shows they have no interest in passing an 
amendment--they simply want to go through the motions to please their 
hard-right base and try to inflict political damage of those of us who 
stand up for the Constitution. The New York Times reported yesterday 
how much pressure Republicans have been under from their extreme right 
wing to turn to this matter. This is apparently especially true now 
that the Republican Party has decided to try to put a pretty face on 
its harmful policies at its upcoming convention by featuring its few 
moderates. Those moderates do not set the policy for the national 
Republican Party and oppose this amendment. However the national 
Republican Party tries to dress itself up at its convention, the hard 
truth is that they are choosing to foster division by pressing this 
matter. If the Senate Republican leadership were interested in amending 
the Constitution, they would not bring this amendment to the floor now 
and face certain defeat. Committee consideration of an amendment is not 
merely a box to check in a procedural flowchart. Committee 
consideration of any legislation, especially constitutional amendments, 
affords an opportunity to address problems that are not easily remedied 
on the Senate floor. Committee consideration can also ensure that we 
agree on what an amendment does, even if we disagree on whether what it 
does is desirable. I certainly do not believe that we are at that point 
as we begin this premature debate. In that light, I would like to 
discuss some of the open questions raised by this amendment.
  I would like to place in the Record a story from the February 14 
Washington Post about the formation of the FMA. The basic theme of the 
report was that even the drafters of the FMA disagree about what it 
means. Matt Daniels, the head of the Alliance for Marriage, a group 
promoting the FMA, was honest enough to tell the Post that the drafters 
of the amendment did not worry too much about the wording, saying, ``I 
don't think we expected there would be this much attention paid to 
it.'' Although the language of the amendment before us has changed 
slightly from the original version, it is essentially the same as the 
sloppy patchwork version introduced last year. I think that Mr. 
Daniels' attitude speaks volumes about the respect the supporters of 
this amendment have for the Constitution.
  This attitude is apparently shared by President Bush, who has made 
clear his desire to use this issue for political advantage. Although 
the President has asked Congress to amend the Constitution to ban gay 
marriage, he has refused repeated calls to state specifically what 
language he believes Congress should adopt. Like the Senate leadership, 
the President appears happy to seek political profit by demeaning both 
the Constitution and gay and lesbian Americans.
  I would contrast the casual approach of the President toward the 
words of our Constitution with the approach of Senator Byrd--the most 
senior member of this body and a fierce defender of the Constitution--
during the 1997 debate over the Balanced Budget Amendment. Senator Byrd 
said:

       I would like to remind my colleagues that law and 
     legislating is about the examination of details. We don't 
     legislate one-liners, or campaign slogans. Here, in this body 
     and in the other body, we put the force of the law behind 
     details that impact mightily upon the daily lives of our 
     people. That is a solemn responsibility. And it is more 
     important than political popularity, or winning the next 
     election or marching lockstep to the orders of one political 
     party, or another.
       Especially in the case of amending the Constitution, that 
     responsibility weighs more heavily. For in that instance we 
     are contemplating changes in our basic, fundamental organic 
     law--changes that, when once implanted in that revered 
     document, can only be removed at great difficulty, and which 
     will impact, quite possibly, upon generations of Americans 
     who, yet unborn, must trust us to guard their birthright as 
     Americans.''

  Senator Byrd was right--the words of a Constitutional amendment 
matter deeply. This is the third version of this amendment that has 
been introduced in the Senate, and it may not be the last. Senator 
Hatch has publicly toyed for months with introducing a different 
version of the amendment and Senator Smith is reported to be working on 
still another version.
  The version of the Federal Marriage Amendment before us today reads 
as follows: ``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.''
  First, the amendment appears to dictate to voters what language they 
can put in their own State Constitutions. The natural reading of the 
FMA suggests that voters in a State could not place in their State 
Constitutions any benefits for same-sex couples that could be defined 
as ``legal incidents'' of marriage. This limitation is particularly 
noteworthy in light of the current proceedings in Massachusetts. In 
response to the Supreme Judicial Court's decision in Goodridge, the 
Massachusetts Legislature has approved an amendment to the 
Massachusetts Constitution that would limit marriage to heterosexual 
unions but provide many of the benefits of marriage to same-sex couples 
through civil unions. This amendment is supported by Governor Mitt 
Romney, who testified before the Judiciary Committee last month.
  Yet it appears that the Massachusetts amendment might be rendered 
unenforceable if the FMA were adopted, for no court would be permitted 
to ``construe'' the Massachusetts Constitution to provide for civil 
unions, which surely provide many of the ``legal incidents'' of 
marriage. Without judicial recognition of civil unions, the rights 
created for gay couples under the Massachusetts Constitution would not 
be worth the paper they are written on, even if they were approved by a 
majority of the State's voters.
  Governor Romney told the Judiciary Committee that he somehow supports 
both the Federal and Massachusetts amendment, and did not believe they 
conflicted. I do not see how he can hold that position. Neither did 
former Representative Bob Barr, a conservative Republican from Georgia, 
who testified before the Committee at the same hearing. Congressman 
Barr said:

       Governor Romney essentially is here to ask the Congress to 
     step in and have the federal government invalidate the 
     actions of the highest state court in his state, and also

[[Page 15354]]

     to strangle before its birth the proposed state 
     constitutional amendment that his own state legislature 
     passed this year. That State constitutional amendment, if 
     passed next session and ratified by his state's voters, would 
     deny marriage rights to same-sex couples, but also provide 
     civil unions. The Federal Marriage Amendment, however, would 
     invalidate any civil union provided by the Massachusetts 
     state constitution, and of course would also invalidate all 
     same-sex marriages in the state.''

  Second, it is unclear from the language of the FMA whether its 
prohibition on ``construing'' a Constitution is limited to the judicial 
branch. From the plain text of the amendment, executive branch 
officials--from a Governor to county clerks--would similarly be 
prohibited from construing even a duly-passed State constitutional 
amendment to provide for the ``legal incidents'' of marriage, whatever 
those should be. This is a potentially breathtaking imposition on our 
States and their officials.
  Third, the term ``legal incidents'' is itself extraordinarily vague. 
Since the amendment did not go through the proper channels, we have no 
Committee report language to clarify this or any of the other vague 
elements of this amendment. We do have the thoughts of Marilyn 
Musgrave, the House sponsor of the FMA, from a memo she produced to 
explain the meaning of the amendment. In her view, ``legal incidents'' 
include, among many other things, the right to bring actions for the 
wrongful death of a partner, rights and duties under adoption law, and 
even the right to hospital visitation. Her sweeping view would thus 
prevent any court anywhere from finding that any State constitutional 
provision might protect a person's right to visit their same-sex 
partner in a hospital. And in the absence of a Committee report on the 
amendment, courts would likely have little choice but to give 
substantial weight to her view.
  Fourth, although some supporters of the proposed amendment state 
categorically that the amendment leaves State legislatures free to pass 
civil union laws, that claim is also open to serious doubt. Surely 
Senator Allard and his allies cannot mean to put the Senate through 
this ordeal only to put the word ``marriage'' off limits to same-sex 
couples. Should a State pass a law that provides for marriage in all 
but name, would supporters of this amendment not mount legal challenges 
based on the amendment's first sentence? Indeed, two of the amendment's 
intellectual godfathers--Professors Robert George of Princeton and 
Gerald Bradley of Notre Dame Law School--have said they believe it 
would forbid civil unions that were sufficiently similar to marriage.
  Fifth, the application of the amendment is not even limited to State 
actors, but would also apparently bind the behavior of private 
organizations, including private religious organizations. The first 
sentence of the amendment purports to define marriage for all time and 
for all purposes. In other words, no one could marry same-sex couples, 
regardless of whether that person was acting on behalf of the State. 
This is one of the reasons why so many religious organizations oppose 
this amendment, including the Episcopal Church, USA, the Alliance of 
Baptists, and the American Jewish Committee.
  The only amendment that binds private parties is the Thirteenth, 
which forbids slavery anywhere in the United States. Given the stain of 
slavery on our nation, and its inherent evil, the Thirteenth 
Amendment's sweeping ban is obviously appropriate. To take that 
extraordinary step here and to impose a definition upon all churches 
and faiths to tell them what they must do is overreaching and 
inappropriate. Marriage is first and foremost a religious concept and 
institution. Respecting religion, the Federal Government ought to stay 
out of defining what a religious definition of marriage can be.
  One thing we can say with certainty about this amendment is that if 
it is passed, it will present a field day for litigation.
  This amendment is all the more mean-spirited because it is 
unnecessary. Unless we are planning to use the constitutional process 
to overturn a single State's marriage policy--a purpose that I doubt 
has the support of even one-third of this body--the only possible 
rationale for the amendment is to authorize States not to recognize 
same-sex marriages performed in other States. This rationale is already 
accomplished, however, by both the inherent right of States to 
establish their own policies regarding marriage and by the Defense of 
Marriage Act, which Congress passed and President Clinton signed in 
1996.
  Many proponents of this amendment have stated as fact that the 
Constitution's Full Faith and Credit Clause requires States to give the 
force of law to marriage licenses issued by other States. This is 
simply not the case. Lea Brilmayer, a professor at Yale Law School and 
an expert on the Full Faith and Credit clause, told the Judiciary 
Committee in March that the Clause was designed and has been 
interpreted to ensure that judgments entered by one State's courts are 
respected in other States. Marriage licenses are not judgments, she 
said, and they have ``never received the automatic effect given to 
judicial decisions.'' Rather, ``courts have not hesitated to apply 
local public policy to refuse to recognize marriages entered into in 
other states.''
  Moreover, Professor Brilmayer testified that the Full Faith and 
Credit Clause ``has never been understood to require recognition of 
marriages entered into in other states that are contrary to local 
`public policy.' The `public policy' doctrine, which is well recognized 
in conflict of laws, frees a state from having to recognize decisions 
by other States that offend deeply held local values.''
  Under this long-established ``public policy'' doctrine, the nearly 40 
States that have elected to pass their own ``Defense of Marriage'' acts 
would be expected not to have to recognize a same-sex marriage from 
Massachusetts. Of course, the small minority of States that have not 
passed such laws are free to pass them at any time. If they do not do 
so, just maybe preventing the recognition of other States' gay 
marriages is not a burning issue for their citizens.
  As the Judiciary Committee has learned, the Constitution places no 
requirement on Pennsylvania to recognize a gay marriage from 
Massachusetts. In the unlikely event that Federal courts take a 
different view and alter the historic understanding of the Full Faith 
and Credit Clause, however, the Defense of Marriage Act provides an 
additional layer of security for States that do not wish to recognize 
same-sex marriage.
  The federal law says that no State shall be required to give effect 
to any public act, record, or judicial proceeding of another state 
respecting a relationship between persons of the same sex that is 
treated as a marriage. It is the law of the land, and no court has 
found it to be unconstitutional. It seems to me that DOMA is 
presumptively constitutional, especially since the Full Faith and 
Credit Clause itself provides Congress with the power to direct the 
Clause's interpretation:

       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.

  Some of my colleagues have suggested that we need to amend the 
Constitution now because the Supreme Court may either (a) invalidate 
DOMA and find that the Full Faith and Credit Clause requires 50-State 
recognition of Massachusetts gay marriages; or (b) go beyond even that 
analysis by finding a right to same-sex marriage under the Equal 
Protection Clause of the Fourteenth Amendment.
  My initial reaction to these predictions about the judiciary is that 
they do not square with the Rehnquist Court I have been watching for 
the last 17 years. It is true that the Supreme Court found last year, 
in Lawrence v. Texas, that Texas and a handful of other States could no 
longer make it a crime for homosexual couples to engage in sexual acts 
in the privacy of their own home. And it is true that many of those who 
support the Federal

[[Page 15355]]

Marriage Amendment decried this imposition on Texas's right to punish 
its gay and lesbian citizens. It is a far leap, however, from saying 
that gay couples should not be thrown in jail and saying that they have 
a Constitutional right to marry. The comparisons that some are making 
between the Lawrence and Goodridge decisions are vastly overblown.
  My second reaction, however, is the one that should move the Senate 
to reject this amendment. Perhaps my colleagues' fearful predictions 
about the activism of the Rehnquist court will come true. More likely, 
they will not. But Congress's job is not to imagine outcomes that 
appellate courts or even the Supreme Court might conceivably reach and 
preemptively amend the Constitution to prevent them. We have had enough 
difficulties during this Congress stemming from a preemptive war--we 
need not add a new preemptive theory to our arsenal. When it comes to 
the Constitution, it is simply wrong for the Senate to ``shoot first 
and ask questions later.'' Rather, it is our duty to show restraint.
  If the Court should reverse 200-plus years of understanding of the 
Full Faith and Credit Clause, or find that the Equal Protection Clause 
prohibits limiting marriage to heterosexual couples, a future Congress 
can react to that decision however it sees fit. That Congress will act 
in a way consistent with the views and circumstances of their time.
  I believe preemptive action on this matter would set a precedent that 
both Republicans and Democrats in this body would come to regret. 
Congressman Barr, the author of the Defense of Marriage Act, 
illuminated this point when he testified last month. Congressman Barr 
said:

       In treating the Constitution as an appropriate place to 
     impose publicly contested social policies, [the FMA] would 
     cheapen the sacrosanct nature of that document, opening the 
     door to future meddling by liberals and conservatives. . . . 
     The Founders created the Constitution with such a daunting 
     amendatory process precisely because it is only supposed to 
     be changed by overwhelming acclamation. It is so difficult to 
     revise specifically in order to guard against the fickle 
     winds of public opinion blowing counter to basic individual 
     rights like speech or religion.

  Part of Congressman Barr's testimony should be of particular note to 
my conservative colleagues. He said, ``We know that the future is 
uncertain, and our fortunes unclear. I would like to think people will 
think like me for a long time to come, but if they do not, I fear the 
consequences of the FMA precedent. Could liberal activists use the FMA 
argument to modify the Second Amendment? Or force income 
redistribution? Or ban tax cuts?'' This should be food for thought for 
all those--from the right or from the left--who would use the 
Constitution as a playground for their policy preferences.
  This is a sad day for the Senate. We all take an oath to uphold the 
Constitution of the United States. But when the Republican majority 
brings a constitutional amendment to the floor in defiance of our 
normal procedures, and with full knowledge that it will not pass, it 
demonstrates a fundamental disrespect for our Constitution and for this 
institution, the United States Senate.
  I close by echoing the words of Senator Byrd from the debate on the 
Balanced Budget Amendment: ``What is really wanted by some in this body 
is not the amendment itself, but an issue with which to whip its 
opponents. This is simple politics, my colleagues. And it is politics 
at its most unappealing and destructive level.''
  I will have more to say about the Federal Marriage Amendment as this 
debate proceeds.
  Mr. REID. Mr. President, we have no speakers tonight.
  In the morning, it is my understanding that the majority leader is 
going to allow--I am quite sure this is true--we would have an hour on 
each side on this amendment. Therefore, on the Democratic side in the 
morning, so there is no confusion, I want to make sure if any Senator 
is calling tonight, there is no more time. We have allocated all the 
time. If people call in the morning, there is no time left.
  I ask unanimous consent that tomorrow, if the majority leader allows 
us the 55 minutes--I think he will--we have Senator Dodd, 15 minutes; 
Senator Carper, 10 minutes; Senator Lieberman, 5 minutes; Senator 
Kennedy, 5 minutes; Senator Levin, 10 minutes; Senator Leahy, 10 
minutes; and I would hope the two leaders could close the debate 
tomorrow morning using their leader time or whatever time is agreed 
upon by the Senate.
  I ask consent on our side, our 55 minutes be divided as I have 
indicated.
  The PRESIDING OFFICER. Without objection, it is so ordered.
  Mr. ALLARD. Mr. President, I will take a moment to talk a little bit 
about my amendment. The purpose of my amendment is to protect marriage. 
There has been an editorial written by the Weekly Standard which I 
would like to share with my colleagues. There are three paragraphs I 
will recite. I ask unanimous consent to have the editorial printed in 
the Record. This is the editorial in the Weekly Standard called 
``Cloturekampf,'' written by Terry Eastland.
  There being no objection, the material was ordered to be printed in 
the Record, as follows:

               [From the Weekly Standard, July 19, 2004]

                              Cloturekampf

                          (By Terry Eastland)

       Senate Republicans deserve credit for pushing this week for 
     a vote on a constitutional amendment that would define 
     marriage in the United States as consisting only of the union 
     of a man and a woman. Whether they will get that vote is an 
     open question. Under Senate rules, 60 votes likely will be 
     needed to cut off debate in order for a vote on the amendment 
     to occur. Those who count heads in the Senate tell us that as 
     few as two Democrats may be willing to vote for cloture, as 
     it is called, and as many as 12 Republicans may be prepared 
     to vote against it. The votes for cloture might not even 
     total 50.
       Yet if you believe that the courts ought not to be 
     irrevocably fixing policy upon such a vital question as what 
     constitutes marriage, there is merit, especially in an 
     election year, in determining just who is and who is not 
     willing to vote on an amendment that would enable the people 
     to decide whether they want to settle the issue as they 
     choose. Which is to say, consistent with their conviction 
     that marriage is what it always has been--only the union of a 
     man and a woman.
       As matters now stand, marriage defined as the union of any 
     two people is the policy of only one government--the 
     Commonwealth of Massachusetts. The policy was fixed by the 
     Supreme Judicial Court of Massachusetts in a decision last 
     November that ran roughshod over the legislature's 
     constitutional authority. The federalist impulse in our shop 
     says that maybe on the question of marriage nothing at all 
     should be done--in which case a state would be allowed to go 
     to hell in a handbasket, if that should be the desire of its 
     judges, and the ruling is allowed to stand. We are reminded 
     that states also can do the right thing, from our point of 
     view, and in fact have. The people of Hawaii responded to 
     their high court's decision implying a constitutional right 
     of same-sex couples to marry by passing a constitutional 
     amendment prohibiting such marriages. And the people of 
     Alaska voted for a similar constitutional amendment in 
     response to a lower-court judge's ruling announcing a right 
     to same-sex marriage.
       Nonetheless, it is now unlikely that the states will be 
     able simply to do as they wish on the question of marriage. 
     Under the Massachusetts Constitution, no amendment in 
     response to the supreme judicial court's decision will be 
     possible until 2006, and in the meantime there is no stopping 
     same-sex nuptials, of which there have been thousands so far, 
     including many from out of state. It is only a matter of time 
     before some same-sex couples who have returned home file 
     lawsuits pressing their states to recognize their unions.
       A basis for their claim will be the federal Constitution's 
     requirement that states give ``full faith and credit'' to 
     other states' judicial proceedings. The federal Defense of 
     Marriage Act of 1996 offers an authoritative interpretation 
     of the ``full faith and credit'' clause designed to prevent 
     the interstate transmission of same-sex marriage. But the 
     Supreme Court has repeatedly told Congress that it lacks the 
     power to do that, and there is no reason to think that the 
     Court would change its mind.
       The odds are strong, then, that same-sex marriage will 
     travel via the federal courts to other states. There also 
     remains a possibility that the Supreme Court itself might 
     simply strike down the traditional definition of marriage. 
     Recall that last summer in Lawrence v. Texas the Court, with 
     Justice Anthony Kennedy writing, did not merely void the 
     nation's sodomy laws. Kennedy also embraced an amorphous 
     right to sexual liberty (untethered to constitutional text or 
     history) that denies the historic right of the

[[Page 15356]]

     people to enact legislation based on their moral views. The 
     Massachusetts Supreme Judicial Court, not incidentally, drew 
     inspiration from Kennedy's Lawrence opinion.
       The question facing the Senate and, for that matter, the 
     House of Representatives, is whether federal judges should be 
     allowed to decide the issue in the way they are likely to--or 
     whether the American people should be given the opportunity 
     to settle it through a constitutional amendment expressing 
     their longstanding conviction about marriage. Even a failed 
     cloture vote will give the country an idea of which senators 
     understand--and which do not--that the definition of marriage 
     is now an unavoidably national issue, and that, if marriage 
     is to remain the union of a man and a woman, the issue will 
     have to be addressed through a constitutional amendment.

  Mr. ALLARD. Also, while I am at it, I would like to add Senator Dole 
as a cosponsor to S.J. Res. 40.
  The PRESIDING OFFICER. Without objection, it is so ordered.
  Mr. ALLARD. Mr. President, the editorial states:

       Nonetheless, it is now unlikely that the states will be 
     able simply to do as they wish on the question of marriage. 
     Under the Massachusetts Constitution, no amendment in 
     response to the supreme judicial court's decision will be 
     possible until 2006, and in the meantime there is no stopping 
     same-sex nuptials, of which there have been thousands so far, 
     including many from out of state. It is only a matter of time 
     before some same-sex couples who have returned home file 
     lawsuits pressing their states to recognize their unions.
       A basis for their claim will be the federal Constitution's 
     requirement that states give ``full faith and credit'' to 
     other states' judicial proceedings. The federal Defense of 
     Marriage Act of 1996 offers an authoritative interpretation 
     of the ``full faith and credit'' clause designed to prevent 
     the interstate transmission of same-sex marriage. But the 
     Supreme Court has repeatedly told Congress that it lacks the 
     power to do that, and there is no reason to think that the 
     Court would change its mind.
       The odds are strong, then, that same-sex marriage will 
     travel via the federal courts to other states. There also 
     remains a possibility that the Supreme Court itself might 
     simply strike down the traditional definition of marriage. 
     Recall that last summer in Lawrence v. Texas the Court, with 
     Justice Anthony Kennedy writing, did not merely void the 
     nation's sodomy laws. Kennedy also embraced an amorphous 
     right to sexual liberty (untethered to constitutional text or 
     history) that denies the historic right of the people to 
     enact legislation based on their moral views. The 
     Massachusetts Supreme Judicial Court, not incidentally, drew 
     inspiration from Kennedy's Lawrence opinion.
       The question facing the Senate and, for that matter, the 
     House of Representatives, is whether federal judges should be 
     allowed to decide the issue in the way they are likely to--or 
     whether the American people should be given the opportunity 
     to settle it through a constitutional amendment expressing 
     their longstanding conviction about marriage. Even a failed 
     cloture vote will give the country an idea of which senators 
     understand--and which do not--that the definition of marriage 
     is now an unavoidably national issue, and that, if marriage 
     is to remain the union of a man and a woman, the issue will 
     have to be addressed through a constitutional amendment--
     Terry Eastland, for the Editors.

  This is the gist of many of our arguments we are making today.
  It has been called to my attention, through press reports, there has 
been a new lawsuit filed in the State of Massachusetts, that an 
attorney in Massachusetts has now filed a lawsuit on behalf of eight 
couples who are asking that the State of Massachusetts repeal their 
provisions which say they will not recognize same-sex marriages of 
individuals who come from other States. The Governor of Massachusetts 
relayed that issue to us during testimony before the committee. They 
just filed that. So here is another court case that has been filed that 
is another attack on marriage. That is why I think it is so very 
important we move forward with this debate.
  This is not a political debate. It is not driven by politics. It is 
driven by the courts. Again, we have an organized effort, I believe, by 
proponents of same-sex marriage who want to undo the idea of a 
traditional marriage.
  Right now, we have 46 States that have same-sex couples living there 
who have marriage licenses. I have been informed there is an organized 
effort to begin to file cases in those respective States. We have 11 
States that have court cases currently filed in them. I was told 
several days ago that within those 11 States we have about 32 cases 
that have been filed, total.
  We have 48 States that have passed laws protecting traditional 
marriage. I have behind me a chart that defines marriage as a union 
between a man and a woman. We had a very fine statement from the 
Senator from Oklahoma who talked about the need and why he carried that 
amendment that protected the definition of marriage and allowed States 
their basic right to defend their position as far as the definition of 
marriage.
  This definition has been supported by huge majorities in these States 
in their legislative bodies. I happen to disagree with my colleague 
from the State of Arizona. I think a large percentage of Americans are 
concerned about changing the definition of traditional marriage. I 
think as they begin to more fully understand, they are going to be more 
forceful in the message they are sending to the Senate, and I think 
eventually the Members of this Senate will realize how very serious 
this particular issue is which is before us today.
  We have at least 10 States that have constitutional amendments on the 
ballot, and 3 States that are still gathering petitions. This issue is 
here before us today. It is an important issue. The people of the 
United States are concerned about what is happening in the courts. That 
is the reason we are here today to carry on this debate.
  There are some profound implications, I believe, to the rearing of 
children. Marriage matters. I have an article entitled: ``The End of 
Marriage in Scandinavia.'' It is written by Stanley Kurtz, in the 
Weekly Standard, and dated February 2, 2004, in which he talks about 
the impact of redefining marriage in the Scandinavian countries and on 
children. I ask unanimous consent that article be printed in the 
Record.
  There being no objection, the material was ordered to be printed in 
the Record, as follows:

                [From the Weekly Standard, Feb. 2, 2004]

The End of Marriage in Scandinavia: The ``Conservative Case'' for Same-
                         Sex Marriage Collapses

                           (By Stanley Kurtz)

       Marriage is slowly dying in Scandinavia. A majority of 
     children in Sweden and Norway are born out of wedlock. Sixty 
     percent of first-born children in Denmark have unmarried 
     parents. Not coincidentally, these countries have had 
     something close to full gay marriage for a decade or more. 
     Same-sex marriage has locked in and reinforced an existing 
     Scandinavian trend toward the separation of marriage and 
     parenthood. The Nordic family pattern--including gay 
     marriage--is spreading across Europe. And by looking closely 
     at it we can answer the key empirical question underlying the 
     gay marriage debate. Will same-sex marriage undermine the 
     institution of marriage? It already has.
       More precisely, it has further undermined the institution. 
     The separation of marriage from parenthood was increasing; 
     gay marriage has widened the separation. Out-of-wedlock 
     birthrates were rising; gay marriage has added to the factors 
     pushing those rates higher. Instead of encouraging a society-
     wide return to marriage, Scandinavian gay marriage has driven 
     home the message that marriage itself is outdated, and that 
     virtually any family form, including out-of-wedlock 
     parenthood, is acceptable.
       This is not how the situation has been portrayed by 
     prominent gay marriage advocates journalist Andrew Sullivan 
     and Yale law professor William Eskridge Jr. Sullivan and 
     Eskridge have made much of an unpublished study of Danish 
     same-sex registered partnerships by Darren Spedale, an 
     independent researcher with an undergraduate degree who 
     visited Denmark in 1996 on a Fulbright scholarship. In 1989, 
     Denmark had legalized de facto gay marriage (Norway followed 
     in 1993 and Sweden in 1994). Drawing on Spedale, Sullivan and 
     Eskridge cite evidence that since then, marriage has 
     strengthened. Spedale reported that in the six years 
     following the establishment of registered partnerships in 
     Denmark (1990-1996), heterosexual marriage rates climbed by 
     10 percent, while heterosexual divorce rates declined by 12 
     percent. Writing in the McGeorge Law Review, Eskridge claimed 
     that Spedale's study had exposed the ``hysteria and 
     irresponsibility'' of those who predicted gay marriage would 
     undermine marriage. Andrew Sullivan's Spedale-inspired piece 
     was subtitled, ``The case against same-sex marriage 
     crumbles.''
       Yet the half-page statistical analysis of heterosexual 
     marriage in Darren Spedale's unpublished paper doesn't begin 
     to get at the truth about the decline of marriage in 
     Scandinavia during the nineties. Scandinavian marriage is now 
     so weak that statistics on marriage and divorce no longer 
     mean what they used to.
       Take divorce. It's true that in Denmark, as elsewhere in 
     Scandinavia, divorce numbers

[[Page 15357]]

     looked better in the nineties. But that's because the pool of 
     married people has been shrinking for some time. You can't 
     divorce without first getting married. Moreover, a closer 
     look at Danish divorce in the post-gay marriage decade 
     reveals disturbing trends. Many Danes have stopped holding 
     off divorce until their kids are grown. And Denmark in the 
     nineties saw a 25 percent increase in cohabiting couples with 
     children. With fewer parents marrying, what used to show up 
     in statistical tables as early divorce is now the unrecorded 
     breakup of a cohabiting couple with children.
       What about Spedale's report that the Danish marriage rate 
     increased 10 percent from 1990 to 1996? Again, the news only 
     appears to be good. First, there is no trend. Eurostat's 
     just-released marriage rates for 2001 show declines in Sweden 
     and Denmark (Norway hasn't reported). Second, marriage 
     statistics in societies with very low rates (Sweden 
     registered the lowest marriage rate in recorded history in 
     1997) must be carefully parsed. In his study of the Norwegian 
     family in the nineties, for example, Christer Hyggen shows 
     that a small increase in Norway's marriage rate over the past 
     decade has more to do with the institution's decline than 
     with any renaissance. Much of the increase in Norway's 
     marriage rate is driven by older couples ``catching up.'' 
     These couples belong to the first generation that accepts 
     rearing the first born child out of wedlock. As they bear 
     second children, some finally get married. (And even this 
     tendency to marry at the birth of a second child is 
     weakening.) As for the rest of the increase in the Norwegian 
     marriage rate, it is largely attributable to remarriage among 
     the large number of divorced.
       Spedale's report of lower divorce rates and higher marriage 
     rates in post-gay marriage Denmark is thus misleading. 
     Marriage is now so weak in Scandinavia that shifts in these 
     rates no longer mean what they would in America. In 
     Scandinavian demography, what counts is the out-of-wedlock 
     birthrate, and the family dissolution rate.
       The family dissolution rate is different from the divorce 
     rate. Because so many Scandinavians now rear children outside 
     of marriage, divorce rates are unreliable measures of family 
     weakness. Instead, we need to know the rate at which parents 
     (married or not) split up. Precise statistics on family 
     dissolution are unfortunately rare. Yet the studies that have 
     been done show that throughout Scandinavia (and the West) 
     cohabiting couples with children break up at two to three 
     times the rate of married parents. So rising rates of 
     cohabitation and out-of-wedlock birth stand as proxy for 
     rising rates of family dissolution.
       By that measure, Scandinavian family dissolution has only 
     been worsening. Between 1990 and 2000, Norway's out-of-
     wedlock birthrate rose from 39 to 50 percent, while Sweden's 
     rose from 47 to 55 percent. In Denmark out-of-wedlock births 
     stayed level during the nineties (beginning at 46 percent and 
     ending at 45 percent). But the leveling off seems to be a 
     function of a slight increase in fertility among older 
     couples, who marry only after multiple births (if they don't 
     break up first). That shift masks the 25 percent increase 
     during the nineties in cohabitation and unmarried parenthood 
     among Danish couples (many of them young). About 60 percent 
     of first born children in Denmark now have unmarried parents. 
     The rise of fragile families based on cohabitation and out-
     of-wedlock childbearing means that during the nineties, the 
     total rate of family dissolution in Scandinavia significantly 
     increased.
       Scandinavia's out-of-wedlock birthrates may have risen more 
     rapidly in the seventies, when marriage began its slide. But 
     the push of that rate past the 50 percent mark during the 
     nineties was in many ways more disturbing. Growth in the out-
     of-wedlock birthrate is limited by the tendency of parents to 
     marry after a couple of births, and also by the persistence 
     of relatively conservative and religious districts. So as 
     out-of-wedlock childbearing pushes beyond 50 percent, it is 
     reaching the toughest areas of cultural resistance. The most 
     important trend of the post-gay marriage decade may be the 
     erosion of the tendency to marry at the birth of a second 
     child. Once even that marker disappears, the path to the 
     complete disappearance of marriage is open.
       And now that married parenthood has become a minority 
     phenomenon, it has lost the critical mass required to have 
     socially normative force. As Danish sociologists Wehner, 
     Kambskard, and Abrahamson describe it, in the wake of the 
     changes of the nineties, ``Marriage is no longer a 
     precondition for settling a family--neither legally nor 
     normatively. . . . What defines and makes the foundation of 
     the Danish family can be said to have moved from marriage to 
     parenthood.''
       So the highly touted half-page of analysis from an 
     unpublished paper that supposedly helps validate the 
     ``conservative case'' for gay marriage--i.e., that it will 
     encourage stable marriage for heterosexuals and homosexuals 
     alike--does no such thing. Marriage in Scandinavia is in deep 
     decline, with children shouldering the burden of rising rates 
     of family dissolution. And the mainspring of the decline--an 
     increasingly sharp separation between marriage and 
     parenthood--can be linked to gay marriage. To see this, we 
     need to understand why marriage is in trouble in Scandinavia 
     to begin with.
       Scandinavia has long been a bellwether of family change. 
     Scholars take the Swedish experience as a prototype for 
     family developments that will, or could, spread throughout 
     the world. So let's have a look at the decline of Swedish 
     marriage.
       In Sweden, as elsewhere, the sixties brought contraception, 
     abortion, and growing individualism. Sex was separated from 
     procreation, reducing the need for ``shotgun weddings.'' 
     These changes, along with the movement of women into the 
     workforce, enabled and encouraged people to marry at later 
     ages. With married couples putting off parenthood, early 
     divorce had fewer consequences for children. That weakened 
     the taboo against divorce. Since young couples were putting 
     off children, the next step was to dispense with marriage and 
     cohabit until children were desired. Americans have lived 
     through this transformation. The Swedes have simply drawn the 
     final conclusion: If we've come so far without marriage, why 
     marry at all? Our love is what matters, not a piece of paper. 
     Why should children change that?
       Two things prompted the Swedes to take this extra step--the 
     welfare state and cultural attitudes. No Western economy has 
     a higher percentage of public employees, public 
     expenditures--or higher tax rates--than Sweden. The massive 
     Swedish welfare state has largely displaced the family as 
     provider. By guaranteeing jobs and income to every citizen 
     (even children), the welfare state renders each individual 
     independent. It's easier to divorce your spouse when the 
     state will support you instead.
       The taxes necessary to support the welfare state have had 
     an enormous impact on the family. With taxes so high, women 
     must work. This reduces the time available for child rearing, 
     thus encouraging the expansion of a day-care system that 
     takes a large part in raising nearly all Swedish children 
     over age one. Here is at least a partial realization of 
     Simone de Beauvoir's dream of an enforced androgyny that 
     pushes women from the home by turning children over to the 
     state.
       Yet the Swedish welfare state may encourage traditionalism 
     in one respect. The lone teen pregnancies common in the 
     British and American underclass are rare in Sweden, which has 
     no underclass to speak of. Even when Swedish couples bear a 
     child out of wedlock, they tend to reside together when the 
     child is born. Strong state enforcement of child support is 
     another factor discouraging single motherhood by teens. 
     Whatever the causes, the discouragement of lone motherhood is 
     a short-term effect. Ultimately, mothers and fathers can get 
     along financially alone. So children born out of wedlock are 
     raised, initially, by two cohabiting parents, many of whom 
     later break up.
       There are also cultural-ideological causes of Swedish 
     family decline. Even more than in the United States, radical 
     feminist and socialist ideas pervade the universities and the 
     media. Many Scandinavian social scientists see marriage as a 
     barrier to full equality between the sexes, and would not be 
     sorry to see marriage replaced by unmarried cohabitation. A 
     related cultural-ideological agent of marital decline is 
     secularism. Sweden is probably the most secular country in 
     the world. Secular social scientists (most of them quite 
     radical) have largely replaced clerics as arbiters of public 
     morality. Swedes themselves link the decline of marriage to 
     secularism. And many studies confirm that, throughout the 
     West, religiosity is associated with institutionally strong 
     marriage, while heightened secularism is correlated with a 
     weakening of marriage. Scholars have long suggested that the 
     relatively thin Christianization of the Nordic countries 
     explains a lot about why the decline of marriage in 
     Scandinavia is a decade ahead of the rest of the West.
       Are Scandinavians concerned about rising out-of-wedlock 
     births, the decline of marriage, and ever-rising rates of 
     family dissolution? No, and yes. For over 15 years, an 
     American outsider, Rutgers University sociologist David 
     Popenoe, has played Cassandra on these issues. Popenoe's 1988 
     book, ``Disturbing the Nest,'' is still the definitive 
     treatment of Scandinavian family change and its meaning for 
     the Western world. Popenoe is no toe-the-line conservative. 
     He has praise for the Swedish welfare state, and criticizes 
     American opposition to some child welfare programs. Yet 
     Popenoe has documented the slow motion collapse of the 
     Swedish family, and emphasized the link between Swedish 
     family decline and welfare policy.
       For years, Popenoe's was a lone voice. Yet by the end of 
     the nineties, the problem was too obvious to ignore. In 2000, 
     Danish sociologist Mai Heide Ottosen published a study, 
     ``Samboskab, Aegteskab og Foraeldrebrud'' (``Cohabitation, 
     Marriage and Parental Breakup''), which confirmed the 
     increased risk of family dissolution to children of unmarried 
     parents, and gently chided Scandinavian social scientists for 
     ignoring the ``quiet revolution'' of out-of-wedlock 
     parenting.
       Despite the reluctance of Scandinavian social scientists to 
     study the consequences of family dissolution for children, we 
     do have

[[Page 15358]]

     an excellent study that followed the life experiences of all 
     children born in Stockholm in 1953. (Not coincidentally, the 
     research was conducted by a British scholar, Duncan W.G. 
     Timms.) That study found that regardless of income or social 
     status, parental breakup had negative effects on children's 
     mental health. Boys living with single, separated, or 
     divorced mothers had particularly high rates of impairment in 
     adolescence. An important 2003 study by Gunilla Ringback 
     Weitoft, et al. found that children of single parents in 
     Sweden have more than double the rates of mortality, severe 
     morbidity, and injury of children in two parent households. 
     This held true after controlling for a wide range of 
     demographic and socioeconomic circumstances.
       The decline of marriage and the rise of unstable 
     cohabitation and out-of-wedlock childbirth are not confined 
     to Scandinavia. The Scandinavian welfare state aggravates 
     these problems. Yet none of the forces weakening marriage 
     there are unique to the region. Contraception, abortion, 
     women in the workforce, spreading secularism, ascendant 
     individualism, and a substantial welfare state are found in 
     every Western country. That is why the Nordic pattern is 
     spreading.
       Yet the pattern is spreading unevenly. And scholars agree 
     that cultural tradition plays a central role in determining 
     whether a given country moves toward the Nordic family 
     system. Religion is a key variable. A 2002 study by the Max 
     Planck Institute, for example, concluded that countries with 
     the lowest rates of family dissolution and out-of-wedlock 
     births are ``strongly dominated by the Catholic confession.'' 
     The same study found that in countries with high levels of 
     family dissolution, religion in general, and Catholicism in 
     particular, had little influence.
       British demographer Kathleen Kiernan, the acknowledged 
     authority on the spread of cohabitation and out-of-wedlock 
     births across Europe, divides the continent into three zones. 
     The Nordic countries are the leaders in cohabitation and out-
     of-wedlock births. They are followed by a middle group that 
     includes the Netherlands, Belgium, Great Britain, and 
     Germany. Until recently, France was a member of this middle 
     group, but France's rising out-of-wedlock birthrate has moved 
     it into the Nordic category. North American rates of 
     cohabitation and out-of-wedlock birth put the United States 
     and Canada into this middle group. Most resistant to 
     cohabitation, family dissolution, and out-of-wedlock births 
     are the southern European countries of Spain, Portugal, 
     Italy, and Greece, and, until recently, Switzerland and 
     Ireland. (Ireland's rising out-of-wedlock birthrate has just 
     pushed it into the middle group.)
       These three groupings closely track the movement for gay 
     marriage. In the early nineties, gay marriage came to the 
     Nordic countries, where the out-of-wedlock birthrate was 
     already high. Ten years later, out-of-wedlock birth rates 
     have risen significantly in the middle group of nations. Not 
     coincidentally, nearly every country in that middle group has 
     recently either legalized some form of gay marriage, or is 
     seriously considering doing so. Only in the group with low 
     out-of-wedlock birthrates has the gay marriage movement 
     achieved relatively little success.
       This suggests that gay marriage is both an effect and a 
     cause of the increasing separation between marriage and 
     parenthood. As rising out-of-wedlock birthrates disassociate 
     heterosexual marriage from parenting, gay marriage becomes 
     conceivable. If marriage is only about a relationship between 
     two people, and is not intrinsically connected to parenthood, 
     why shouldn't same-sex couples be allowed to marry? It 
     follows that once marriage is redefined to accommodate same-
     sex couples, that change cannot help but lock in and 
     reinforce the very cultural separation between marriage and 
     parenthood that makes gay marriage conceivable to begin with.
       We see this process at work in the radical separation of 
     marriage and parenthood that swept across Scandinavia in the 
     nineties. If Scandinavian out-of-wedlock birthrates had not 
     already been high in the late eighties, gay marriage would 
     have been far more difficult to imagine. More than a decade 
     into post-gay marriage Scandinavia, out-of-wedlock birthrates 
     have passed 50 percent, and the effective end of marriage as 
     a protective shield for children has become thinkable. Gay 
     marriage hasn't blocked the separation of marriage and 
     parenthood; it has advanced it.
       We see this most clearly in Norway. In 1989, a couple of 
     years after Sweden broke ground by offering gay couples the 
     first domestic partnership package in Europe, Denmark 
     legalized de facto gay marriage. This kicked off a debate in 
     Norway (traditionally more conservative than either Sweden or 
     Denmark), which legalized de facto gay marriage in 1993. 
     (Sweden expanded its benefits packages into de facto gay 
     marriage in 1994.) In liberal Denmark, where out-of-wedlock 
     birthrates were already very high, the public favored same-
     sex marriage. But in Norway, where the out-of-wedlock 
     birthrate was lower--and religion traditionally stronger--gay 
     marriage was imposed, against the public will, by the 
     political elite.
       Norway's gay marriage debate, which ran most intensely from 
     1991 through 1993, was a culture-shifting event. And once 
     enacted, gay marriage had a decidedly unconservative impact 
     on Norway's cultural contests, weakening marriage's 
     defenders, and placing a weapon in the hands of those who 
     sought to replace marriage with cohabitation. Since its 
     adoption, gay marriage has brought division and decline to 
     Norway's Lutheran Church. Meanwhile. Norway's fast-rising 
     out-of-wedlock birthrate has shot past Denmark's. 
     Particularly in Norway--once relatively conservative--gay 
     marriage has undermined marriage's institutional standing for 
     everyone.
       Norway's Lutheran state church has been riven by conflict 
     in the decade since the approval of de facto gay marriage, 
     with the ordination of registered partners the most divisive 
     issue. The church's agonies have been intensively covered in 
     the Norwegian media, which have taken every opportunity to 
     paint the church as hidebound and divided. The nineties began 
     with conservative churchmen in control. By the end of the 
     decade, liberals had seized the reins.
       While the most public disputes of the nineties were over 
     homosexuality, Norway's Lutheran church was also divided over 
     the question of heterosexual cohabitation. Asked directly, 
     liberal and conservative clerks alike voice a preference for 
     marriage over cohabitation--especially for couples with 
     children. In practice, however, conservative churchmen speak 
     out against the trend toward unmarried cohabitation and 
     childbirth, while liberals acquiesce.
       This division over heterosexual cohabitation broke into the 
     open in 2000, at the height of the church's split over gay 
     partnerships, when Prince Haakon, heir to Norway's throne, 
     began to live with his lover, a single mother. From the start 
     of the prince's controversial relationship to its eventual 
     culmination in marriage, the future head of the Norwegian 
     state church received tokens of public support or 
     understanding from the very same bishops who were leading the 
     fight to permit the ordination of homosexual partners.
       So rather than strengthening Norwegian marriage against the 
     rise of cohabitation and out-of-wedlock birth, same-sex 
     marriage had the opposite effect. Gay marriage lessened the 
     church's authority by splitting it into warring factions and 
     providing the secular media with occasions to mock and expose 
     divisions. Gay marriage also elevated the church's openly 
     rebellious minority liberal faction to national visibility, 
     allowing Norwegians to feel that their proclivity for 
     unmarried parenthood, if not fully approved by the church, 
     was at least not strongly condemned. If the ``conservative 
     case'' for gay marriage had been valid, clergy who were 
     supportive of gay marriage would have taken a strong public 
     stand against unmarried heterosexual parenthood. This didn't 
     happen. It was the conservative clergy who criticized the 
     prince, while the liberal supporters of gay marriage 
     tolerated his decisions. The message was not lost on ordinary 
     Norwegians, who continued their flight to unmarried 
     parenthood.
       Gay marriage is both an effect and a reinforcing cause of 
     the separation of marriage and parenthood. In states like 
     Sweden and Denmark, where out-of-wedlock birthrates were 
     already very high, and the public favored gay marriage, gay 
     unions were an effect of earlier changes. Once in place, gay 
     marriage symbolically ratified the separation of marriage and 
     parenthood. And once established, gay marriage became one of 
     several factors contributing to further increases in 
     cohabitation and out-of-wedlock birthrates, as well as to 
     early divorce. But in Norway, where out-of-wedlock birthrates 
     were lower, religion stronger, and the public opposed same-
     sex unions, gay marriage had an even greater role in 
     precipitating marital decline.
       Sweden's position as the world leader in family decline is 
     associated with a weak clergy, and the prominence of secular 
     and left-leaning social scientists. In the post-gay marriage 
     nineties, as Norway's once relatively low out-of-wedlock 
     birthrate was climbing to unprecedented heights, and as the 
     gay marriage controversy weakened and split the once 
     respected Lutheran state church, secular social scientists 
     took center stage.
       Kari Moxnes, a feminist sociologist specializing in 
     divorce, is one of the most prominent of Norway's newly 
     emerging group of public social scientists. As a scholar who 
     sees both marriage and at-home motherhood as inherently 
     oppressive to women, Moxnes is a proponent of nonmarital 
     cohabitation and parenthood. In 1993, as the Norwegian 
     legislature was debating gay marriage, Moxnes published an 
     article, ``Det tomme ekteskap'' (``Empty Marriage''), in the 
     influential liberal paper Dagbladet. She argued that 
     Norwegian gay marriage was a sign of marriage's growing 
     emptiness, not its strength. Although Moxnes spoke in favor 
     of gay marriage, she treated its creation as a (welcome) 
     death knell for marriage itself. Moxnes identified 
     homosexuals--with their experience in forging relationships 
     unencumbered by children--as social pioneers in the 
     separation of marriage from parenthood. In recognizing 
     homosexual relationships, Moxnes said, society was ratifying

[[Page 15359]]

     the division of marriage from parenthood that had spurred the 
     rise of out-of-wedlock births to begin with.
       A frequent public presence, Moxnes enjoyed her big moment 
     in 1999, when she was embroiled in a dispute with Valgerd 
     Svarstad Haugland, minister of children and family affairs in 
     Norway's Christian Democrat government. Moxnes had criticized 
     Christian marriage classes for teaching children the 
     importance of wedding vows. This brought a sharp public 
     rebuke from Haugland. Responding to Haugland's criticisms, 
     Moxnes invoked homosexual families as proof that 
     ``relationships'' were now more important than institutional 
     marriage.
       This is not what proponents of the conservative case for 
     gay marriage had in mind. In Norway, gay marriage has given 
     ammunition to those who wish to put an end to marriage. And 
     the steady rise of Norway's out-of-wedlock birthrate during 
     the nineties proves that the opponents of marriage are 
     succeeding. Nor is Kari Moxnes an isolated case.
       Months before Moxnes clashed with Haugland, social 
     historian Kari Melby had a very public quarrel with a leader 
     of the Christian Democratic party over the conduct of 
     Norway's energy minister, Marit Arnstad. Arnstad had gotten 
     pregnant in office and had declined to name the father. Melby 
     defended Arnstad, and publicly challenged the claim that 
     children do best with both a mother and a father. In making 
     her case, Melby praised gay parenting, along with voluntary 
     single motherhood, as equally worthy alternatives to the 
     traditional family. So instead of noting that an expectant 
     mother might want to follow the example of marriage that even 
     gays were now setting, Melby invoked homosexual families as 
     proof that a child can do as well with one parent as two.
       Finally, consider a case that made even more news in 
     Norway, that of handball star Mia Hundvin (yes, handball 
     prowess makes for celebrity in Norway). Hundvin had been in a 
     registered gay partnership with fellow handballer Camilla 
     Andersen. These days, however, having publicly announced her 
     bisexuality, Hundvin is linked with Norwegian snowboarder 
     Terje Haakonsen. Inspired by her time with Haakonsen's son, 
     Hundvin decided to have a child. The father of Hundvin's 
     child may well be Haakonsen, but neither Hundvin nor 
     Haakonsen is saying.
       Did Hundvin divorce her registered partner before deciding 
     to become a single mother by (probably) her new boyfriend? 
     The story in Norway's premiere paper, Aftenposten, doesn't 
     bother to mention. After noting that Hundvin and Andersen 
     were registered partners, the paper simply says that the two 
     women are no longer ``romantically involved.'' Hundvin has 
     only been with Haakonsen about a year. She obviously decided 
     to become a single mother without bothering to see whether 
     she and Haakonsen might someday marry. Nor has Hundvin 
     appeared to consider that her affection for Haakonsen's child 
     (also apparently born out of wedlock) might better be 
     expressed by marrying Haakonsen and becoming his son's new 
     mother.
       Certainly, you can chalk up more than a little of this saga 
     to celebrity culture. But celebrity culture is both a product 
     and influencer of the larger culture that gives rise to it. 
     Clearly, the idea of parenthood here has been radically 
     individualized, and utterly detached from marriage. 
     Registered partnerships have reinforced existing trends. The 
     press treats gay partnerships more as relationships than as 
     marriages. The symbolic message of registered partnerships--
     for social scientists, handball players, and bishops alike-
     has been that most any nontraditional family is just fine. 
     Gay marriage has served to validate the belief that 
     individual choice trumps family form.
       The Scandinavian experience rebuts the so-called 
     conservative case for gay marriage in more than one way. 
     Noteworthy, too, is the lack of a movement toward marriage 
     and monogamy among gays. Take-up rates on gay marriage are 
     exceedingly small. Yale's William Eskridge acknowledged this 
     when he reported in 2000 that 2,372 couples had registered 
     after nine years of the Danish law, 674 after four years of 
     the Norwegian law, and 749 after four years of the Swedish 
     law.
       Danish social theorist Henning Bech and Norwegian 
     sociologist Rune Halvorsen offer excellent accounts of the 
     gay marriage debates in Denmark and Norway. Despite the 
     regnant social liberalism in these countries, proposals to 
     recognize gay unions generated tremendous controversy, and 
     have reshaped the meaning of marriage in the years since. 
     Both Bech and Halvorsen stress that the conservative case for 
     gay marriage, while put forward by a few, was rejected by 
     many in the gay community. Bech, perhaps Scandinavia's most 
     prominent gay thinker, dismisses as an ``implausible'' claim 
     the idea that gay marriage promotes monogamy. He treats the 
     ``conservative case'' as something that served chiefly 
     tactical purposes during a difficult political debate. 
     According to Halvorsen, many of Norway's gays imposed self-
     censorship during the marriage debate, so as to hide their 
     opposition to marriage itself. The goal of the gay marriage 
     movements in both Norway and Denmark, say Halvorsen and Bech, 
     was not marriage but social approval for homosexuality. 
     Halvorsen suggests that the low numbers of registered gay 
     couples may be understood as a collective protest against the 
     expectations (presumably, monogamy) embodied in marriage.
       Since liberalizing divorce in the first decades of the 
     twentieth century, the Nordic countries have been the leading 
     edge of marital change. Drawing on the Swedish experience, 
     Kathleen Kiernan, the British demographer, uses a four-stage 
     model by which to gauge a country's movement toward Swedish 
     levels of out-of-wedlock births.
       In stage one, cohabitation is seen as a deviant or avant-
     garde practice, and the vast majority of the population 
     produces children within marriage. Italy is at this first 
     stage. In the second stage, cohabitation serves as a testing 
     period before marriage, and is generally a childless phase. 
     Bracketing the problem of underclass single parenthood, 
     America is largely at this second stage. In stage three, 
     cohabitation becomes increasingly acceptable, and parenting 
     is no longer automatically associated with marriage. Norway 
     was at this third stage, but with recent demographic and 
     legal changes has entered stage four. In the fourth stage 
     (Sweden and Denmark), marriage and cohabitation become 
     practically indistinguishable, with many, perhaps even most, 
     children born and raised outside of marriage. According to 
     Kiernan, these stages may vary in duration, yet once a 
     country has reached a stage, return to an earlier phase is 
     unlikely. (She offers no examples of stage reversal.) Yet 
     once a stage has been reached, earlier phases coexist.
       The forces pushing nations toward the Nordic model are 
     almost universal. True, by preserving legal distinctions 
     between marriage and cohabitation, reining in the welfare 
     state, and preserving at least some traditional values, a 
     given country might forestall or prevent the normalization of 
     nonmarital parenthood. Yet every Western country is 
     susceptible to the pull of the Nordic model. Nor does 
     Catholicism guarantee immunity. Ireland, perhaps because of 
     its geographic, linguistic, and cultural proximity to 
     England, is now suffering from out-of-wedlock birthrates far 
     in excess of the rest of Catholic Europe. Without deeming a 
     shift inevitable, Kiernan openly wonders how long America can 
     resist the pull of stages three and four.
       Although Sweden leads the world in family decline, the 
     United States is runner-up. Swedes marry less, and bear more 
     children out of wedlock, than any other industrialized 
     nation. But Americans lead the world in single parenthood and 
     divorce. If we bracket the crisis of single parenthood among 
     African-Americans, the picture is somewhat different. Yet 
     even among non-Hispanic whites, the American divorce rate is 
     extremely high by world standards.
       The American mix of family traditionalism and family 
     instability is unusual. In comparison to Europe, Americans 
     are more religious and more likely to turn to the family than 
     the state for a wide array of needs--from child care, to 
     financial support, to care for the elderly. Yet America's 
     individualism cuts two ways. Our cultural libertarianism 
     protects the family as a bulwark against the state, yet it 
     also breaks individuals loose from the family. The danger we 
     face is a combination of America's divorce rate with 
     unstable, Scandinavian-style out-of-wedlock parenthood. With 
     a growing tendency for cohabiting couples to have children 
     outside of marriage, America is headed in that direction.
       Young Americans are more likely to favor gay marriage than 
     their elders. That oft-noted fact is directly related to 
     another. Less than half of America's twenty-
     somethings consider it wrong to bear children outside 
     marriage. There is a growing tendency for even middle class 
     cohabiting couples to have children without marrying.
       Nonetheless, although cohabiting parenthood is growing in 
     America, levels here are still far short of those in Europe. 
     America's situation is not unlike Norway's in the early 
     nineties, with religiosity relatively strong, the out-of-
     wedlock birthrate still relatively low (yet rising), and the 
     public opposed to gay marriage. If, as in Norway, gay 
     marriage were imposed here by a socially liberal cultural 
     elite, it would likely speed us on the way toward the classic 
     Nordic pattern of less frequent marriage, more frequent out-
     of-wedlock birth, and skyrocketing family dissolution.
       In the American context, this would be a disaster. Beyond 
     raising rates of middle class family dissolution, a further 
     separation of marriage from parenthood would reverse the 
     healthy turn away from single-parenting that we have begun to 
     see since, welfare reform. And cross-class family decline 
     would bring intense pressure for a new expansion of the 
     American welfare state.
       All this is happening in Britain. With the Nordic pattern's 
     spread across Europe, Britain's out-of-wedlock birthrate has 
     risen to 40 percent. Most of that increase is among 
     cohabiting couples. Yet a significant number of out-of-
     wedlock births in Britain are to lone teenage mothers. This a 
     function of Britain's class divisions. Remember that although 
     the Scandinavian welfare state encourages family dissolution 
     in the long term, in the short term, Scandinavian parents 
     giving birth out of wedlock tend to stay together. But given 
     the presence of a substantial underclass in

[[Page 15360]]

     Britain, the spread of Nordic cohabitation there has sent 
     lone teen parenting rates way up. As Britain's rates of 
     single parenting and family dissolution have grown, so has 
     pressure to expand the welfare state to compensate for 
     economic help that families can no longer provide. But of 
     course, an expansion of the welfare state would only lock the 
     weakening of Britain's family system into place.
       If America is to avoid being forced into a similar choice, 
     we'll have to resist the separation of marriage from 
     parenthood. Yet even now we are being pushed in the 
     Scandinavian direction. Stimulated by rising rates of 
     unmarried parenthood, the influential American Law Institute 
     (ALI) has proposed a series of legal reforms (``Principles of 
     Family Dissolution'') designed to equalize marriage and 
     cohabitation. Adoption of the ALI principles would be a giant 
     step toward the Scandinavian system.
       Americans take it for granted that, despite its recent 
     troubles, marriage will always exist. This is a mistake. 
     Marriage is disappearing in Scandinavia, and the forces 
     undermining it there are active throughout the West. Perhaps 
     the most disturbing sign for the future is the collapse of 
     the Scandinavian tendency to marry after the second child. At 
     the start of the nineties, 60 percent of unmarried Norwegian 
     parents who lived together had only one child. By 2001, 56 
     percent of unmarried, cohabiting parents in Norway had two or 
     more children. This suggests that someday, Scandinavian 
     parents might simply stop getting married altogether, no 
     matter how many children they have.
       The death of marriage is not inevitable. In a given 
     country, public policy decisions and cultural values could 
     slow, and perhaps halt, the process of marital decline. Nor 
     are we faced with an all-or-nothing choice between the 
     marital system of, say, the 1950s and marriage's 
     disappearance. Kiernan's model posits stopping points. So 
     repealing nofault divorce, or even eliminating premarital 
     cohabitation, are not what's at issue. With nofault divorce, 
     Americans traded away some of the marital stability that 
     protects children to gain more freedom for adults. Yet we can 
     accept that trade-off, while still drawing a line against 
     descent into a Nordic-style system. And cohabitation as a 
     premarital testing phase is not the same as unmarried 
     parenting. Potentially, a line between the two can hold.
       Developments in the last half-century have surely weakened 
     the links between American marriage and parenthood. Yet to a 
     remarkable degree, Americans still take it for granted that 
     parents should marry. Scandinavia shocks us. Still, who can 
     deny that gay marriage will accustom us to a more 
     Scandinavian-style separation of marriage and parenthood? And 
     with our underclass, the social pathologies this produces in 
     America are bound to be more severe than they already are in 
     wealthy and socially homogeneous Scandinavia.
       All of these considerations suggest that the gay marriage 
     debate in America is too important to duck. Kiernan maintains 
     that as societies progressively detach marriage from 
     parenthood, stage reversal is impossible. That makes sense. 
     The association between marriage and parenthood is partly a 
     mystique. Disenchanted mystiques cannot be restored on 
     demand.
       What about a patchwork in which some American states have 
     gay marriage while others do not? A state-by-state patchwork 
     would practically guarantee a shift toward the Nordic family 
     system. Movies and television, which do not respect state 
     borders, would embrace gay marriage. The cultural effects 
     would be national.
       What about Vermont-style civil unions? Would that be a 
     workable compromise? Clearly not. Scandinavian registered 
     partnerships are Vermont-style civil unions. They are not 
     called marriage, yet resemble marriage in almost every other 
     respect. The key differences are that registered partnerships 
     do not permit adoption or artificial insemination, and cannot 
     be celebrated in state-affiliated churches. These limitations 
     are gradually being repealed. The lesson of the Scandinavian 
     experience is that even de facto same-sex marriage undermines 
     marriage.
       The Scandinavian example also proves that gay marriage is 
     not interracial marriage in a new guise. The miscegenation 
     analogy was never convincing. There are plenty of reasons to 
     think that, in contrast to race, sexual orientation will have 
     profound effects on marriage. But with Scandinavia, we are 
     well beyond the realm of even educated speculation. The post-
     gay marriage changes in the Scandinavian family are 
     significant. This is not like the fantasy about interracial 
     birth defects. There is a serious scholarly debate about the 
     spread of the Nordic family pattern. Since gay marriage is a 
     part of that pattern, it needs to be part of that debate.
       Conservative advocates of gay marriage want to test it in a 
     few states. The implication is that, should the experiment go 
     bad, we can call it off. Yet the effects, even in a few 
     American states, will be neither containable nor revocable. 
     It took about 15 years after the change hit Sweden and 
     Denmark for Norway's out-of-wedlock birthrate to begin to 
     move from ``European'' to ``Nordic'' levels. It took another 
     15 years (and the advent of gay marriage) for Norway's out-
     of-wedlock birthrate to shoot past even Denmark's. By the 
     time we see the effects of gay marriage in America, it will 
     be too late to do anything about it. Yet we needn't wait that 
     long. In effect, Scandinavia has run our experiment for us. 
     The results are in.

  Mr. ALLARD. Mr. President, I see we have the Senator from Alabama in 
the Chamber. I would like to give him an opportunity to address the 
Senate.
  The PRESIDING OFFICER. The Senator from Alabama is recognized.
  Mr. SESSIONS. I thank the Presiding Officer and Senator Allard for 
his leadership on this issue. I am proud to cosponsor this legislation 
with him.
  I think a constitutional amendment is appropriate, and I believe it 
is worthy of this Senate to take time to discuss it. I believe it is 
important for the American people to understand the danger, the threat 
to marriage as we have known it in this culture and, indeed, as it has 
been known for thousands of years. It is endangered by the decisions of 
unelected judges who are not accountable to the public. As a result, it 
is their States rights that are being eroded through this kind of 
activity.
  The U.S. Supreme Court, as I discussed in some detail last night, 
through the ruling in Lawrence v. Texas has very clearly--
philosophically and as a matter of principle--placed marriage as we 
have known it in jeopardy. Indeed, Justice Scalia predicted, in 
dissent, this is exactly where the Court is headed. It is exactly what 
the Supreme Court of the United States is going to do. It is going to 
rule consistent with the Supreme Court of Massachusetts. We are on the 
verge of seeing that happen. If they do not do it next year, or even 
the year after that, that does not mean that marriage as we know it in 
America today is not under threat of a Supreme Court ruling. No one in 
this body would assert with confidence that the Supreme Court, in light 
of their language in the Lawrence case, is not about to adopt a ruling 
similar to that of Massachusetts. So marriage is in jeopardy by the 
U.S. Supreme Court, jeopardy in terms of the way we have defined it 
traditionally.
  This is not an act of the people. It is not an act of any 
legislature. No State or Federal legislative body that has ever sat has 
concluded this way. None. None has voted for this kind of definition of 
marriage.
  I will emphasize, first of all, for those who believe that States 
have the ability to do something by passing a constitutional amendment 
or a State statute dealing with marriage to affirm traditional 
marriage, that would be wiped out by one ruling of the U.S. Supreme 
Court. The U.S. Supreme Court, when it defines the equal protection 
clause of the due process clause of the U.S. Constitution, trumps any 
State law.
  What we are doing is to protect, defend the rights of the States to 
adopt legislatively the position they have always adopted. I believe it 
is an important national issue, as has been discussed by a number of 
very fine lawyers.
  Jon Kyl, yesterday, in his statement--and Senator Kyl has argued 
three cases before the U.S. Supreme Court--delineated the mess we will 
be in when people move from State to State with children they have 
adopted. Their relationships are one in one State, another in another 
State. A national definition of marriage is healthy for the country.
  But I tell you, I would admit, we would not be here if it were not 
for the courts. We would not be seeking a constitutional amendment. We 
would not be in this debate had we not been placed in a position where 
the American people have to stand up and defend their democratic powers 
against an activist judiciary.
  Let me add parenthetically, this is what the debate over judges is 
about; it has been going on in this Congress for several years now. 
President Bush believes in judges who follow the law, not make the law, 
judges who do not believe it is their right and that they have the 
power to impose their personal views on people through their 
``definition'' of the Constitution of the United States.

[[Page 15361]]

  For 200 years plus, we have had an equal protection clause. It is 
only recently that some judges seem to believe that allows them to 
redefine marriage.
  That is a stunning activist decision. It is the same kind of decision 
we have seen on the Pledge of Allegiance, the same kind of decision we 
have seen on many other issues coming before us today. It would be very 
appropriate that the American people, following the constitutionally 
approved process of a constitutional amendment, would answer that and 
say what they think about marriage and how it ought to be defined. The 
truth is that we will be better off with a fundamental definition of 
marriage nationally. It is important that we do so because of the 
action of the courts.
  Some say: Well, the American people don't want this. My phones are 
ringing off the hook. I don't know about Senator Allard or the 
Presiding Officer. I had my people check. We have had 1,500 calls for 
this amendment and less than 30 or 40 opposed. The American people are 
concerned about it, and rightly they should be. Maybe, as with a lot of 
important issues that come before the Senate, they are not fully 
informed of what is happening, and this debate will help them become 
better informed. I don't know.
  My colleague, Senator McCain, suggested that the American people 
don't support this constitutional amendment. I am just looking at some 
recent survey data. Here is one from June 23-24, 2004. Do you favor or 
oppose a constitutional amendment that defines marriage as a union 
between a man and a woman: Favor, 57 percent; opposed, 38 percent. That 
was New Models survey.
  Here is one, CBS News-New York Times. Would you favor or oppose an 
amendment to the U.S. Constitution that would allow marriage only 
between a man and a woman: Favor, 59 percent; opposed, 35 percent. That 
is March of this year.
  I don't think the American people are fully understanding of just how 
far the courts have moved and just how much the traditional definition 
of marriage is under attack today. Members of this Congress need to 
think about that. I don't believe it is going away after this vote. The 
issue will remain alive. The American people are going to continue to 
contact their legislators because the matter is important. Marriage is 
important.
  Senator Brownback, who does such a good job, has gone into some 
detail today and yesterday on how we have seen in Europe and 
Scandinavia that the adoption of same-sex marriages has furthered the 
decline in respect for marriage in those countries. And after those 
acts have occurred, we have seen a substantial surge in the number of 
out-of-wedlock births in those countries and the decline of marriage. 
It is rather dramatic.
  Just within the last few days, six experts from Scandinavia have 
written a letter to other European nations and the United States, I 
suppose, telling them that they ought to be careful when they start 
tinkering with the traditional definition of marriage. It has serious 
sociological impacts on the life and culture of those countries. It is 
time for us to back up a little bit.
  I would also note parenthetically that we have not adopted the 
socialist model of Europe. Our economy is stronger. Our unemployment is 
less. Our growth rate is higher. Our economy is healthier than Europe. 
We have not followed their mentality on national defense and we have 
the strongest military in the world and we have the strongest 
capability in the world. So why would we want to adopt their ideas 
about marriage? It would be the wrong thing for us to do.
  The fact that we have resisted in those areas tells me that we are 
not on an inevitable decline in marriage.
  The PRESIDING OFFICER. Under the previous order, the time of the 
majority has expired.
  Mr. SESSIONS. I ask unanimous consent that I be allowed to speak as 
in morning business.
  The PRESIDING OFFICER. Without objection, it is so ordered.
  Mr. SESSIONS. We need to think about those issues and consider 
seriously the direction this country intends to take on marriage. That 
is all I am saying. I urge my colleagues to realize this is a 
significant vote. What we say indicates what this Nation, what this 
culture thinks about marriage.
  I am going to talk in a moment about why it is important. But I do 
believe it is not disputable that adopting a same-sex marriage culture 
undermines and weakens marriage.
  We had two articulate African-American leaders speak to a group of us 
a few days ago. They pointed out how hard they worked to sustain 
marriage in their churches and in their communities, how important they 
believe it is that there be stable, strong families so that children 
can be raised in that environment, and how hard they have worked at it 
and how frustrated they are that we would think about changing the 
definition of marriage because they are convinced that it would 
undermine the classical marriage relationship.
  Let me just say one more thing parenthetically. I do not believe this 
debate should be negative. I do not believe it should put down any 
person, any group of people who have alternative lifestyles. Our Nation 
allows people to express themselves and live as they choose. I do 
believe, however, that it is important for us to have as the marital 
relationship in our country the ideal relationship of a man and a 
woman. That is what we have always done, and that is what we ought to 
proceed with now.
  I do not believe it is appropriate for me to judge someone else's 
behavior. That is between them and their Lord. One wise thinker talked 
about the Scriptures. He said: The Scriptures say we should not be 
greedy, that we should not be violent. The Scriptures say we should not 
be angry. All of us violate all kinds of values, principles, moral 
rules of behavior that our Creator has set for us. So I am not here to 
judge anybody or condemn anybody. They must live and make their own 
judgments about how to behave. I have certain beliefs about proper 
standards of behavior, but I am not able to say I am any better than 
anybody else who may or may not fail to act in a proper way.
  Let's talk about why marriage is important. If we are at a point 
where we are convinced that this judicial change could further weaken 
the institution of marriage, then what impact will that have on the 
people of this country? What impact will that have on the quality of 
life and the health and vitality of our next generation of young 
people?
  I had the privilege to chair a hearing recently in the Health, 
Education, Labor, and Pensions Committee. It was entitled ``Healthy 
Marriage: What Is It and Why Should We Promote It.'' It was a very 
excellent hearing. I learned an awful lot.
  We asked three questions. First, is marriage good? Is it a good 
thing? Second, if marriage is good, should the Government involve 
itself in promoting that good? And finally, significantly, can the 
Government make any difference in marriage in a culture?
  After listening to a distinguished panel of witnesses, I determined 
that the answer to each of these questions is yes. First, we know that 
marriage is a social good. Children are more likely to be healthy in 
two-parent homes, and there is less government dependence when people 
are in families led by married parents.
  Second, while government should not be involved in the decision to 
marry--of course, that is an individual decision--once that decision is 
made, government should be on the side of supporting marriage, 
affirming marriage, certainly doing nothing to undermine marriage or 
reduce its power, its legitimacy, and its sanctity in society.
  Government is often on the side of promoting social good. For 
example, government incentives exist for home ownership. Why? Because 
we believe home ownership makes for a more stable community. It allows 
families to generate wealth and create wealth and have something to 
live in in their old age. That is a good goal and we promote it. We 
have tax breaks for charitable giving because we want to encourage 
charity. We have government

[[Page 15362]]

grants, loans, and tax breaks to encourage people to enhance their 
education. We have government incentives for preventive health care.
  Finally, government can make a difference. Positive examples of 
government involvement in helping marriage include the Oklahoma 
marriage savers initiative, as former Oklahoma Gov. Frank Keating 
testified at our hearing. The marriage savers community policy is 
something we studied carefully. In the community that has a marriage 
savers policy, it has strengthened marriage.
  I thought the most dramatic testimony came from Dr. Barbara Dafoe 
Whitehead. I will talk about her testimony in a moment. We also heard 
from Roland Warren and Dr. Wade Horn, who testified on a number of 
issues.
  All right. So if we continue the European model of deemphasizing the 
importance of classical marriage, defining it down, if we follow that 
direction and that further undermines marriage in a society, will it 
hurt our society? Will we be diminished by it?
  Let me share with you some of the facts that have been assembled by 
Barbara Dafoe Whitehead, Ph.D., director of the National Marriage 
Project. Ten years ago, she wrote an article that was voted one of the 
most significant articles in the second half of the 20th century. The 
title was, ``Dan Quayle Was Right.'' It had to do with former Vice 
President Dan Quayle's speech in which he questioned the blase way we 
treat divorce in our society, and he raised aggressively the importance 
of marriage. He was roundly condemned and made fun of at that time. Dr. 
Whitehead later wrote her article. She said she took a lot of 
criticism. She had criticism from colleges and universities about the 
data that she had reported from various studies around the country. She 
noted that she doesn't hear criticism today. Nobody disputes the data. 
No one disputes that a two-parent traditional family is a healthy, 
positive force for our society. That is why it is perfectly legitimate 
for any government to provide laws that further that. That is what we 
want to do.
  Government has a right to further social institutions, to affirm them 
legally, those institutions that make their society more healthy. This 
is some of what she said in her statement to the committee:

       On average, married people are happier, healthier, 
     wealthier, enjoy longer lives, and report greater sexual 
     satisfaction than single, divorced, or cohabitating 
     individuals.

  Well, after that, I went home and thanked my wife for putting up with 
me all these years. That is a good affirmation of marriage. There are 
very few matters that are not encompassed in there that are improved by 
marriage. She went on to say:

       Married people are less likely to take moral or mortal 
     risk, and are even less inclined to risk-taking when they 
     have children.

  Isn't that a good thing? I think so.

       They have better health habits and receive more regular 
     health care. They are less likely to attempt or to commit 
     suicide. They are more likely to enjoy close and supportive 
     relationships with their close relatives and to have a wider 
     social support network. They are better equipped to cope with 
     life crises, such as severe illness, job loss, and 
     extraordinary care needs of sick children or aging parents.

  Those are things that come from a marriage. She said:

       If family structure had not changed between 1960 and 1998, 
     the black child poverty rate in 1998 would have been 28 
     percent rather than 45 percent, and the white child poverty 
     rate would have been [less, also].
       Children experience an estimated 70 percent drop in their 
     household income in the immediate aftermath of divorce and, 
     unless there is a remarriage, the income is still 40 percent 
     to 45 percent lower 6 years later than for children in intact 
     families.

  Mr. President, we know these are statistical numbers. We know many 
families do an extraordinary job outside of the two-parent 
relationship. Single moms are some of the most courageous people this 
country has today. They do a great job in many ways, but it is more 
difficult. Statistically speaking, we know it is more difficult to be 
as effective.
  I will add some other things.

       The risk of high school dropout for children from two-
     parent biological families is substantially less than that 
     for those from single-parent or stepfamilies. Children from 
     married-parent families also have fewer behavioral or school 
     attendance problems and higher levels of educational 
     attainment. They are better able to withstand pressures to 
     engage in early sexual activity and to avoid unwed teen 
     parenthood.

  I think those are important values.

       They are significantly more likely to earn four-year 
     college degrees or better, and to do better occupationally 
     than children from divorced or single-parent families.
       On average, children reared in married-parent families are 
     less vulnerable to serious emotional illness, depression and 
     suicide than children from non-intact families.
       Close to 4 out of 10 American children go through a 
     parental divorce.
       Children from married-parent families have more satisfying 
     dating relationships, more positive attitudes toward future 
     marriage, and greater success in forming lasting marriages. . 
     . . [Y]oung men from married families are less likely to be 
     divorced and more likely to be married. . . . In addition, 
     young men from married-parent households have more positive 
     attitudes toward women, children, and family life than men 
     who grew up in nonintact families.
       Poverty rates for married couples are half those of 
     cohabitating couple parents and one-third those of 
     noncohabitating single parents in households with other 
     adults.

  The traditional family is a protection against poverty. The numbers 
are indisputable on it. I don't see how we can dispute it. So the 
question is, Do we agree that the rulings of the courts that threaten 
traditional marriage will further a decline and disrespect for 
marriage? Will it weaken the definition of marriage, reduce its power 
and sanctity and integrity? Is that true? I think it is. If that is so, 
then that is not good for our culture.
  If there are not families here to raise children, if there are not 
families here to nurture them, if there are not families to educate 
them, to hug them at night, to take them to church, or to help them 
with their homework, or to tell them how to get over their anger and 
forgive people who have wronged them, and to go on and be happy and be 
strong and courageous and do the right thing, who is going to do that? 
Is it going to be the government, through increased social taxes and 
welfare, or a secular institution who, by definition, as we have 
learned in this body, cannot say anything of a spiritual nature in 
terms of raising children? Do they have to be raised by some secular 
State? Are we going to be better off if that occurs? I don't think so.
  I am not talking about partnerships by people who choose to live 
together. I am talking about the State definition of marriage. Is that 
important for America? I think it is.
  I see the Senator from Kansas. He eloquently, as I indicated earlier, 
delineated and explained why the redefinition of marriage guarantees 
that continual erosion of marriage, and if we erode marriage, we erode 
this culture, and it will hurt children. It will undermine them and it 
will undermine our strength as a nation, something any State, any 
nation has a right to be engaged in, and it ought to be engaged in 
through its elected representatives, the people they elect, and the 
people should be able to decide this.
  I could go on with point after point from Dr. Barbara Dafoe 
Whitehead. Her scientific, indisputable evidence of the dangers we face 
if we think we can blithely go along with the idea that marriage is 
only what makes people feel good, that marriage is only for adults and 
what they feel at the time and what they would like to do at the time.
  People can do what they like to do--they really can--in this country. 
We are not putting people in jail for that. But they do not need to 
have a definition of marriage apply to relationships of that kind. The 
American people have not voted for it. They have never voted for it. 
They do not favor it now, and I do not believe they are going to vote 
for it.
  The question is, Will we allow them, through this constitutional 
amendment process, to speak to the unelected judges through the proper 
amendment process? Will we block it in the Senate? Or are we going to 
send it out to the States and let the people have a chance to be heard? 
I think that is what we ought to do. I cannot imagine why we would not 
want to do that.

[[Page 15363]]

  A lot of people say: I do not believe in same-sex unions, or I 
believe marriage ought to be between a man and a woman. It is nice to 
say that. Why don't you vote for it? Let's have people up here vote for 
it; otherwise, we are facing a very strong likelihood we will continue 
to see the courts erode this historic institution that is so important 
to our culture.
  I thank the Chair.
  Mr. SANTORUM. Will the Senator from Alabama yield for a question?
  Mr. SESSIONS. I will be pleased to attempt to answer the question of 
the Senator from Pennsylvania.
  Mr. SANTORUM. I have been away for a few hours, running around the 
Hill, which we tend to do. I want to ask the Senator from Alabama or 
the Senator from Colorado, has anyone today or in the past 3 days come 
to the floor of the Senate and announced their support for a 
redefinition of traditional marriage?
  Mr. SESSIONS. I am not aware of that.
  Mr. ALLARD. I am not aware of anybody.
  Mr. SANTORUM. I have not read any article in a publication or heard 
any radio or seen any television show or report thereof where anyone in 
this Chamber has said anything but that they support the definition of 
traditional marriage.
  Mr. President, do my colleagues have any comments?
  Mr. SESSIONS. I think the Senator from Pennsylvania is exactly 
correct.
  Mr. SANTORUM. Yet we have heard on the floor today, have we not, that 
those of us who support a definition with which they agree, that 
Members who have criticized us for offering this, are intolerant, 
hateful, and gay bashers for proposing language which they say they 
support; is that an accurate description of what has gone on here 
today?
  Mr. SESSIONS. I have not been here throughout the day. I have not 
heard all of those charges made, but it does seem close to what I have 
been reading and hearing; yes.
  Mr. SANTORUM. Mr. President, does the Senator from Colorado wish to 
comment on Members who oppose this constitutional amendment yet support 
the language of it, which I find to be somewhat remarkable, but they 
support the definition of traditional marriage and have stated so, yet 
accuse those of us who would like to put it in law, in a constitutional 
amendment, as being purveyors of hate and intolerance; is that not what 
has happened today on the floor of the Senate?
  Mr. ALLARD. To respond to the question of the Senator from 
Pennsylvania, I think there has been some attempt to try to make that 
case today on the floor. As the lead sponsor of this particular 
amendment, it does not hold any water for me because, as was reported 
in the papers, I have had individuals work for me who profess to the 
fact that they are homosexual, and despite that, I recognize publicly 
that they have done a great job in my office. I have even presented an 
award to one of those individuals so he would have a scholarship to go 
to school and further his education.
  So anybody who tries to make a case as far as this individual is 
concerned of animus in their debate, somehow there is animosity, it 
will not hold water. In fact, what this issue is about, No. 1, is any 
individual who wants to profess a lifestyle that incorporates same-sex 
marriage, that is their personal decision, but the debate is they 
simply do not have a right to change the definition of marriage, and 
that is what this debate is all about.
  Mr. SANTORUM. I would like to pick up on what the Senator from 
Colorado said, which is, I know in my office, we have provisions in our 
office manual which actually prohibit any discrimination on the basis 
of race, sex, national origin, or sexual preference. We have those 
provisions in our office manual. And we do not discriminate in hiring.
  I believe people can make contributions and should make contributions 
and should be able to contribute to our society, particularly here on 
the Hill. I know, as has been reported widely in the press, there are a 
lot of people in this category on both sides of the aisle who are 
homosexuals who make great contributions to this Chamber. No one wants 
to deny them their ability to live out their dreams. But as I think the 
Senator from Colorado said, it is important for us to understand that 
this debate is not about limiting anybody's choices, except children, 
because that is really what this debate is about.
  If we change the definition of marriage, we end up limiting the 
choices of children and having the right to have a mother or father. I 
know this is on the time of the Senator from Alabama. I wanted to make 
sure I had not missed anything.
  Mr. SESSIONS. No, I think the Senator made a very critical point, and 
that is there is no room to suggest that those of us who read the 
Supreme Court opinion of the United States, who watch what is happening 
in Massachusetts, who have seen what is happening in other places 
around the country, actions that are contrary to the will of the people 
of the United States of America through their elected representatives--
and people say--they agree with the people. People indicate they are 
supportive of where the people are. So how can they condemn an 
amendment that Senator Allard has worked on that simply affirms the 
traditional definition of marriage that they say they support?
  Mr. BROWNBACK. Mr. President, will the Senator from Alabama yield for 
another question?
  Mr. SESSIONS. I will be pleased to yield.
  Mr. BROWNBACK. If I can ask the Senator from Alabama, it seems to me 
that we have been discussing for at least 2 years, maybe 5 years now, 
ways to strengthen marriage in America. I believe the Senator supported 
the elimination of the marriage tax penalty. We have had huge debates 
about that marriage tax penalty, the whole issue being, how can we 
strengthen marriage and why do we want to do that. Because it is the 
best place to raise children and the Government has a great interest in 
it.
  We just embarked, I believe, on a welfare debate where we were 
debating the issue within welfare and trying to encourage marriage 
amongst people on public assistance because it raises them out of 
poverty and helps children; is that correct, we have been debating 
those two issues as ways to strengthen marriage?
  Mr. SESSIONS. The Senator is absolutely correct. Dr. Wade Horn, from 
the Department of Health and Human Services, who testified before my 
committee, says that any welfare reform we pass must help strengthen 
marriage because without marriage, poverty is increased.
  Mr. BROWNBACK. Then it seems questionable to me, if we have done 
these sort of things, we have invested billions of dollars to try to 
strengthen marriage, we are doing away with the marriage penalty tax 
because we want to encourage marriage because that is good for children 
and good for America, and we are trying to encourage marriage in the 
welfare reform bill because it is good for children and good for people 
in poverty to lift them out of poverty, and the Senator was citing 
that, then why would we allow the courts to redefine marriage to 
include same-sex unions where we know in case study after case study 
that weakens the institution of marriage, that hurts the creation of 
strong, vital marriages, and it is defining marriage downward? Why 
would we do something that is so counter to what we have been trying to 
change over the past several years by making promarriage policies and 
we would now do something that is antimarriage and against the 
children?
  Mr. SESSIONS. I could not agree with the Senator more. Why would we 
do this? I think most Senators who are elected to this Senate have 
campaigned on and heard from their constituents a growing concern and 
unease about some of the cultural trends we are seeing, particularly in 
family and values in the family. All of us have said we are going to do 
something about it. We need to strengthen family and not undermine it. 
I believe this is a step downwards.

[[Page 15364]]

  I know the Senator was an admirer, as I have been, of former Senator 
Daniel Patrick Moynihan, a great scholar, a man who studied social 
policy in depth as a professor, as a Cabinet member, and as a Senator. 
The Senator stated the other day how important that Democratic Senator 
from New York felt about marriage. If the Senator recalls those words, 
it would be important for us to hear them again.
  Mr. BROWNBACK. I worked with him on a number of issues, and he was a 
great study of culture. He actually said the central conservative truth 
is that culture is more important than government. What culture honors 
and what it does not honor, what it upholds, what it says is good, and 
what it says is wrong is more important than the government around it. 
He was saying actually that the central role of government at all 
levels should be to see that children are born and remain in intact 
families. This was his comment. He was saying that because that is the 
central foundational character of building the institution that we 
have. It is not government. Government is important. It provides a 
number of very useful functions, but it is not the central entity. It 
is that family basis that builds the strong citizenry, strong people.
  As a cultural commentator, he saw that. As a matter of fact, he 
nearly lost his job in the 1960s by commenting about the disintegration 
of the American family in a particular ethnic group at that time, but 
he was just saying that if that family unit is ruined, it goes downhill 
and has an effect on the children. That is why he felt so strongly 
about it and why I feel so strongly about it. In looking at these 
cultural indicators, we need to do everything we can to help this 
institution that is in trouble.
  Marriage is in trouble in America. I have a chart that I will quickly 
share with my colleagues to show the type of trouble we are in.
  Mr. SESSIONS. Mr. President, I yield the floor to the Senator from 
Kansas.
  The PRESIDING OFFICER. The Senator from Kansas is recognized.
  Mr. BROWNBACK. Mr. President, to make this point, and I will not 
belabor it with my colleagues who want to speak, but I want to show the 
portion of children entering broken families has more than quadrupled 
since 1950. I think a lot of us in this room were born in the 1950s. We 
can see on this chart the children born out of wedlock and as parents 
are divorced in 1950 is about 12 percent or so. Going to the year 2000, 
it is up to about 55 percent. The reason that is problematic is we know 
children operate and function best in a family with a mom and a dad and 
a low-conflict union. We know that marriage is incredibly important to 
the formation of these children for the next generation. That does not 
mean they cannot succeed in this type of setting. They can, and many 
do. It just means the odds are tougher. It is more difficult for them.
  Now if we take this institution of marriage that is already having 
difficulty, already is having trouble staying together, and say to it 
basically we are going to define it differently now than we have 
through 5,000 years of human existence--and the reason it has been 
defined this way for 5,000 years of human existence is there is a 
natural order to us. We know that marriage is between a man and a 
woman. It is written in our hearts. We understand that. A law does not 
have to be written on it; it is in the natural order of mankind. If we 
start telling people by the law, and the law is a teacher, no, it is 
not really that, it can be any sort of union one wants: It can be two 
men, it can be two women, then it starts to further make difficult this 
situation and it further erodes the marital union. That is the problem.
  This is not about same-sex marriage. This is about kids. This is 
about a 5,000-year-old institution that has served society throughout 
history, and it is being redefined in a way that goes against what we 
understand it is in our hearts. This is harmful, and we know that from 
other countries that have engaged in it.
  This is going the wrong way, and it is against clear public policy 
trends that we have engaged in in this body. It is even against what 
everybody in this body says. Everybody in this body says they are for 
traditional marriage between a man and a woman. So if they are, then 
vote that way and stand up for it instead of further harming these 
trendlines of an institution that is vitally important. We should not 
do that.
  Mr. ALLARD. Will the Senator from Kansas yield for a question?
  Mr. BROWNBACK. Yes, I would be happy to.
  Mr. ALLARD. I have always felt that marriage was the fundamental 
building block of any society, and especially if one is talking about a 
democracy like we have in the United States. I have always been of the 
view that as long as there is a good basis for families to function, 
that means there would be less need for government, and there would be 
fewer programs. That has always had a particular appeal to me because I 
do not believe we need more government; I believe we need less 
government.
  I have always felt that there is definitely a role for a mother and a 
father and a husband and a wife, and that the culture that promotes the 
basic fundamental unit where they teach their children about the future 
based on their experiences in life is something that is very difficult 
to supplant as an effective unit, and I think historically over 
thousands of years that has proven true. We are on the verge of 
redefining marriage which will put this basic unit that is so 
fundamental to society at risk. Would the Senator from Kansas agree 
with that?
  Mr. BROWNBACK. I could not agree more. Since I have been in the 
Senate, I have been one who has spoken out about the cultural problems 
that we have had and that we are in. If we take an already weakened 
institution--that is, the central basis by which we have values that we 
pass on to the next generation the lessons learned from the prior 
generation, where there are people who care and are in a bonded 
relationship that is there for life--if that is further eroded by 
teaching through the law that it can be any sort of arrangement one 
wants it to be and it is about how people care for each other, if they 
have love for each other, and not about the next generation or building 
that family and building children for the next generation, we really 
are moving ourselves into a terrain we have not seen in human history. 
What we see taking place now says it takes us in the wrong direction.
  We know that clearly from the Netherlands and we know that from their 
scholars now who are saying they have to figure some way to try to 
again instill traditional marriage because people are walking away from 
it. There are counties in Norway where 80 percent of the children are 
born out of wedlock because you have defined away that marriage 
institution and you have said it is not a sacred institution, it is a 
civil rights institution, and it can be any arrangement you want. It 
weakens a fundamental institution we need for this country to be strong 
in the future.
  Mr. ALLARD. I would like to thank the Senator from Kansas for his 
leadership. He has become recognized as a strong proponent of families 
and proponent for children. I, for one, appreciate his leadership in 
the Senate.
  Mr. BROWNBACK. I thank my colleague and yield the floor.
  Mr. SESSIONS. Will the Senator yield for two brief questions? One is, 
as you discussed and I attempted to discuss, isn't it valid and doesn't 
a government have a rational basis to affirm traditional marriage? 
Isn't there evidence, based on the data we have heard and seen, that 
there is a rational, foundational basis for a government to affirm the 
traditional marriage as opposed to other relationships in society?
  Mr. BROWNBACK. There is not only a rational basis as the legal 
argument would have it, there is a moral imperative to do so. If you 
want a strong citizenry in the future, raised in a situation that is 
optimal--a mom and a dad bonded together for life, in a low-conflict 
union--if you want an optimal setting for most of your citizenry, you 
are obligated to push this union in a setting and to say, in speaking 
to the society, this is where we need the children raised. This is the 
optimal setting. This is the place.

[[Page 15365]]

  Not that everybody will achieve the optimal. They clearly will not. 
All families in this country, mine included, have had difficulties in 
this area. There is no question about that. But if you remove the 
optimal and say it is too hard, we can't get there, and let's give up, 
it is a sure way to pave the road down. We know that from other 
countries' experience.
  It is not only a rational basis, a legal argument, I would say it is 
a moral imperative as a government official that you press as much as 
you can to have children raised in this optimal setting.
  Mr. SESSIONS. I couldn't agree with you more. You stated it so well.
  I do not want to demean or speak down about any relationship or any 
persons and the choices they make. But let's say this. Statistically 
speaking, do fathers and mothers both make different contributions to 
the health and development of a child?
  Mr. BROWNBACK. Obviously we know that from the social data. I have 
charts I have gone through previously that show that each contributes 
differently to the makeup and the nature of that child and making a 
healthy, well-rounded child. We know that from the social data.
  But there is another argument that I think is actually more powerful. 
We know that in our hearts. We know that from the time we have come up 
in this society. We know that from 6,000 years of human history. That 
is one of those things that, again, is written on the heart of man, 
that you know this is the way it is to be.
  Even when you talk with people today who are raising children in a 
single-parent household, by and large virtually all of them wish what 
they had was a mom and a dad here in a bonded relationship who love 
each other and care for each other, that recognize divine authority in 
their lives and that pass on to that next generation the hope and their 
love and the yearning for yet a better era coming forward.
  That is what we all want. It is not by accident or even by social 
programming that we want that. That is written on our hearts. All of 
our colleagues would agree with that. I think we should recognize the 
truth of that and not say that may be written on your hearts but that 
was programmed when you were a kid growing up in Parker, KS, and this 
is different. This is there. It is there for a reason. It is there 
because it is best for the kids.
  Mr. SESSIONS. I thank the Senator.
  Mr. BROWNBACK. Mr. President, I yield the floor.
  The PRESIDING OFFICER. The Senator from Colorado.
  Mr. ALLARD. Mr. President, we have been hearing the point that there 
is no threat and we are being somewhat paranoid about this issue. But I 
have a summary here of the court actions that have been brought up in 
the various States throughout this country. I am amazed, frankly 
flabbergasted, at the number of cases that have been brought before the 
various State courts and in some cases the Federal court. I thought I 
would take a moment to go through some of these cases. I think once you 
have seen the whole litany of cases here you begin to understand there 
is an organized, concerted effort starting at the State courts and then 
eventually moving into the Federal courts and hopefully, by those who 
support same-sex marriage, to the U.S. Supreme Court for a favored 
ruling. I will start with Alabama.
  This case has been recently dismissed as of April. They had two men 
in an Alabama State prison who sued the State for the right to marry 
each other. They said they had a Federal constitutional right to 
marriage. As I mentioned, this case was dismissed.
  In Alaska, there is an interesting case, a case pending currently in 
the State supreme court. The ACLU has sued to prevent Alaska from 
granting benefits to married couples if the State does not provide the 
same benefits to same-sex couples. This case has been argued in the 
Alaska Supreme Court and could be decided any day.
  In Arizona, again the State supreme court has refused to hear a case 
brought there where two men were denied a marriage license and sued in 
State court. They lost in the district court on their first appeal and 
curiously the gay rights groups tried to talk them out of pursuing 
their case because it interfered with the group's national litigation 
strategy. Let me repeat this. Gay rights groups tried to talk them out 
of pursuing their case because it interfered with the group's national 
litigation strategy. On May 25 of this year, the Arizona Supreme Court 
refused to hear their appeal which should bring this particular 
litigation to an end.
  In the State of California, we have a number of pending cases. That 
is probably not a surprise to anybody here on the floor. There is a 
case pending in the State supreme court about San Francisco's mayor who 
defied State law and began issuing marriage licenses to same-sex 
couples in February of this year. They made a court case about it. The 
States refused to register the marriages and same-sex couples from 46 
States received licenses while San Francisco was issuing licenses. 
Several lawsuits were filed to challenge San Francisco's action. They 
are now consolidated in the California Supreme Court. The State of 
California is defending its traditional marriage laws and the statewide 
initiative that passed with 60 percent of the vote in 2000. Again, a 
decision is expected on that particular case.
  I would like to correct the record. I think one of the colleagues 
made the statement that there are no Federal court challenges to DOMA, 
the Defense of Marriage Act. Actually, in Florida there is a Federal 
court challenge to DOMA, or the Defense of Marriage Act. A private 
attorney announced on the 11th of this month that he would soon file a 
Federal lawsuit challenging the DOMA law. The lawsuit is expected to be 
filed as we move forward.
  We have two separate cases pending in State trial court in Florida. 
Two cases have been filed in the State trial court challenging 
Florida's traditional marriage laws. Again, this first case is a class 
action filed in Broward County by a private attorney. Later it was 
filed in Key West by the National Center for Lesbian Rights.
  It was interesting to get the public reaction when the private 
attorney talked about filing his Federal lawsuit in Florida with the 
Federal court challenge, and the reaction from those groups supporting 
same-sex marriage. They didn't want him to file that because they felt 
it would bring it too quickly to the U.S. Supreme Court and they would 
not be prepared in order to make the case in front of the Supreme 
Court. I thought that was an interesting reaction in the public media 
when that case was talked about being filed.
  In Georgia, there was a case seeking recognition of a Vermont civil 
union, which was rejected by Georgia's State court. In Burns v. Burns, 
the parties sought to have a Vermont civil union treated as a legal 
marriage in Georgia and the trial court and court of appeals refused to 
treat a Vermont civil union as a marriage and the Georgia Supreme Court 
declined to review the case.
  In Indiana, there is a case pending in the Indiana Court of Appeals. 
Three same-sex couples sued in Marion County Superior Court for the 
right to marry under the Constitution.
  This case was dismissed and is now on appeal to the intermediate 
State appeals court. This case is Morrison v. Sadler.
  In Iowa, there is a same-sex divorce case that was dismissed. Two 
women entered into a civil union in Vermont and later asked an Iowa 
trial court to grant them a divorce.
  They are coming at this from various angles.
  In December 2003, the Iowa court initially granted the divorce, but 
after his action was challenged because Iowa did not recognize same-sex 
marriage in Vermont civil unions, the judge reworked the order dividing 
the couple's property. The civil union was not recognized.
  In Maryland, a lawsuit was filed July 7 of 2004. The ACLU filed a 
lawsuit in State court demanding the State grant marriage licenses to 
same-sex couples.
  In Massachusetts, activists announced on June 16, 2004, that they 
would challenge in court the 1913 Massachusetts law that prevents same-
sex

[[Page 15366]]

marriage to out-of-State couples. I believe that case was filed today.
  In Montana, there is a case pending in State supreme court. The 
Montana chapter of the ACLU sued on behalf of two lesbian employees of 
the Montana State University system challenging that the State 
discriminates against gay and lesbian employees by giving spousal 
benefits only to married couples. The trial court dismissed the case in 
November of 2002 and the case is now pending on appeal before the 
Montana Supreme Court. This case is called Snetsinger v. Board of 
Regents.
  In Nebraska, there is an interesting Federal case. There is a Federal 
case pending in Federal District Court. The ACLU has filed suit to 
challenge a State constitutional amendment that defines marriage as man 
and woman and bars civil unions or domestic partnerships. They went 
much further than what my amendment provides. The ACLU argued that the 
State constitutional amendment violates the U.S. Supreme Court's 
decision in Romer v. Evans. In a preliminary ruling, the Federal 
district judge indicated sympathy with the ACLU claim and the Nebraska 
attorney general Jon Bruning told the Senate Judiciary Subcommittee on 
the Constitution that he expects Nebraska to lose the case. This is the 
constitutional amendment in Nebraska that was passed with 70 percent of 
the voters in Nebraska. I think this has all sorts of implications. It 
has been filed in the district court.
  There is a case in New Jersey pending in the State court of appeals. 
In 2002, Lambda Legal filed a suit in State court on behalf of same-sex 
couples seeking to marry. The State district court dismissed their case 
and Lambda has appealed to the intermediate State appeals court. The 
case is called Lewis v. Harris. The town of New Asbury, NJ has 
announced that it will file amicus briefs in support of the same-sex 
couples.
  In New Mexico, there is a case pending in State trial court. The 
Sandoval County clerk issued marriage licenses to same-sex couples in 
February of 2004. The New Mexico Supreme Court has agreed to hear 
arguments regarding the issuing of marriage licenses to same-sex 
couples in Sandoval County. It is unclear if the court will decide the 
case this summer or fall, or if the decision will be delayed until 
2005.
  In New York, there is a case pending in State trial court in March 
and April of 2004. The ACLU and Lambda Legal each filed lawsuits 
arguing that to deny same-sex couples the right to marry one another 
violates the New York Constitution.
  In North Carolina, a case was withdrawn by a same-sex couple. In 
March 2004, they were denied a marriage license by Durham County, NC. 
So they filed a lawsuit.
  In Oklahoma, the State ballot initiative may be challenged. The ACLU 
is threatening to challenge a November 2004 ballot.
  In Oregon, there is a case on appeal to the State intermediate court 
in Multnomah County, which includes Portland, which began issuing 
marriage licenses to same-sex couples in February of 2004. More than 
3,000 marriage licenses were issued. On April 20, the State trial court 
ruled the marriage licenses conducted over the past 2 months were legal 
and that Oregon must register the marriages as valid. The State court 
of appeals stayed the lower court's order requiring the State to 
recognize the 3,022 marriage licenses of same-sex couples in the 
Portland area.
  In Pennsylvania, a lawsuit has been threatened after a same-sex 
couple was denied a marriage license.
  In Rhode Island, the State attorney general stated on May 17 that he 
interpreted Rhode Island law to require recognition of Massachusetts 
same-sex marriages.
  In Tennessee, the Associated Press reported a same-sex couple was 
planning to file a lawsuit.
  In Texas, a same-sex divorce case was dismissed there.
  In Virginia and Washington, there are three cases pending in State 
trial court.
  In West Virginia, we have a case dismissed by the supreme court with 
a possible review by the U.S. Supreme Court.
  This gives an overview of the amount of lawsuits that have been filed 
throughout this country in trying to establish a case in certain venues 
that could be appealed to a higher court.
  This is an organized effort. I think when you look at the cases that 
have been filed in the various courts, it is hard to say marriage 
shouldn't be protected. Marriage is under assault. That is why it is 
important that we move forward with this particular piece of 
legislation because, as has been stated time and time again here on the 
floor of the Senate, when you look at the Goodridge case and the 
Lawrence v. Texas case, and then the Constitution as it applies between 
the interaction between States and comments from members of the U.S. 
Supreme Court, there is definitely a threat to traditional marriage.
  My hope is we can get this passed, get it through the House, and get 
it before the people of America so they can help decide this issue. If 
they are successful, then it means the courts will not have defined 
marriage. The American people will have had an opportunity to enter 
into this debate. With this particular amendment before us, through 
their elected representatives the American people will have an 
opportunity to have their voice heard in the Senate. It was brought up 
in the House. As they will read it in the papers this fall, later on 
people will have an opportunity to express their views through the 
Members in the U.S. House of Representatives. Then at some point in 
time, if we get enough votes--a two-thirds vote in both the House and 
Senate--then it goes to the States and three-quarters of the States 
ratify it, then this means it is debated in the legislatures and the 
American people will have an opportunity to again make their views 
known about how they feel about protecting marriage.
  This was put in place by our Founders because ultimately they did not 
want to have the courts to have the final say on issues where there was 
a large percentage of the population in America who felt they would 
have an opportunity to address this issue through a constitutional 
amendment.
  This is something that has been laid out by our Founders. I think it 
is time we have this amendment before us now for debate.
  Let me make one additional comment. In the Oregon State Court of 
Appeals, they decided this week that the State must enroll the 
marriages, which would be to recognize marriages.
  This issue is moving forward. I am pleased about the amount of 
support we have had from Members of the Senate coming forward and 
expressing their support. I thank them for that. I thank them for the 
leadership of the Senator from Pennsylvania and the Senator from 
Kansas. I thank the Senator from Alabama for his support. Without them, 
I think a good deal of the substance of this debate would have been 
missed. I appreciate their effort and dedication to the family.
  I yield the floor.
  The PRESIDING OFFICER. The Senator from Pennsylvania is recognized.
  Mr. SANTORUM. Mr. President, I return the thanks to the Senator from 
Colorado for his willingness to step forward and introduce this 
legislation. He has carried it with a firmness of purpose and a gentle 
touch, which is his way, in the way of bringing this issue squarely to 
the Senate before the American public. He is to be congratulated.
  The leader is in the Senate. I thank him for agreeing to bring this 
bill before the Senate, to have a vote on this constitutional amendment 
in the Senate, and to have this first public debate about the 
institution of marriage and the attempt to redefine that institution by 
the courts.
  If I can, I want to start from scratch to answer the question that 
many have offered today on the other side of the aisle, which is, Why 
are we here?
  Some have suggested we are here because we hate certain people. Some 
suggest we are here because we are politically motivated to try to 
rally troops before the election. Some suggest we are here because we 
want to change the subject to something other than what we have been 
debating for the last several months in the Senate.

[[Page 15367]]

  We suggest we are here because we want to preserve an institution 
that has served civilization well for 5,000 years. While that 
institution has been shaken, that institution has fissures in the 
foundation; it is still an institution worth preserving. It is an 
institution worth rebuilding. It is an institution worth fixing the 
cracks in that foundation. It is an institution worth shoring up and 
strengthening that foundation.
  It is not an institution that we need to say, because it is broken, 
because the institution of marriage is not what it once was--I think 
everyone will accept in this body, those who are fighting for 
traditional marriage, will say no, the institution of marriage is not 
what it once was. It certainly has been the glue that has held the 
family together. Every culture, every civilization known to man, has 
had an institution of marriage of some bright, ritual symbol that has 
shown the monogamous bond between a man and a woman. Why? For the 
purpose of continuing on that civilization and a recognition that 
children need moms and dads and moms and dads who are in committed 
relationships is the ideal.
  I look at my kids. I am blessed to have seven children, six of which 
we are raising. I know my children feel safer, feel more secure, more 
confident, knowing their mom and dad are there and are supportive and 
loving.
  There are lots of people in our society who were raised by single 
parents who feel that love and support from that single parent. Those 
single parents in many cases do extraordinary jobs. But even if you 
talk to single parents and kids raised by single parents and you ask 
them, wouldn't it have been better, the ideal, if mom and dad were 
joined together in a healthy marriage, raising you in a safe and secure 
and stable home? The answer is, invariably, yes.
  What we are here to debate is not an abstract concept of what 
marriage is or what it should be, but it is a real social benefit. I 
cannot think of anything more we can do--and the Senator from Kansas 
talked about this--there is nothing more we have focused in on in the 
last several years than trying to shore up and affirm marriage. Whether 
it is the marriage penalty or the marriage initiative the President put 
forward in the welfare bill, the idea from all the social science data 
is there are enormous benefits to marriage.
  We had a hearing in the Finance Committee, on which I serve. The 
hearing brought forth witnesses from the left and right. We asked them 
a series of questions about marriage and its benefits. There was a 
woman representing the Democratic side of the aisle. She made the 
argument that raising children by parents in an alternative form is 
just as good as being raised by a mother and a father in a loving, 
stable relationship. That argument is over. Yes, it can happen, but it 
is not the ideal. It is not best for children across the board.
  The children do better in school. They have less dropouts, fewer 
emotional and behavioral problems, less substance abuse, less abuse and 
neglect, less criminal activity, less early sexual activities, and 
fewer out-of-wedlock births. And more. The evidence presented was 
dumped on us overwhelming, the benefits of marriage, irrespective of 
social or economic condition, the benefits of having a mother and a 
father contributing their unique nature to the nature of that child.
  The evidence is in. The jury is in. Marriage is good. Marriage is a 
public-policy-desirable goal. Why? Because it benefits children but it 
also benefits mothers and fathers.
  I read yesterday, and I will repeat today, a listing of five things 
in the sense of the purpose of marriage, what it does to benefit the 
culture.
  No. 1, the bonding between men and women that ensures their 
cooperation for the common good.
  By the way, this article was written by two professors in Canada, a 
woman professor who is straight and a homosexual man. They wrote this 
article in support of traditional marriage in opposition to a 
redefinition of traditional marriage to include same-sex couples. They 
did so based purely on sociological data, on psychological data, on the 
overwhelming evidence of the public good of traditional marriage.
  No. 1, I mentioned, the important bond between men and women.
  No. 2, the birth and rearing of children, at least to the extent 
necessary for preserving and fostering society and culturally approved 
ways.
  No. 3, bonding between men and children so men are likely to become 
active participants in family life.
  I will stop to focus on that for a minute. We have an initiative in 
the President's welfare bill, the Father's Initiative, that Senator 
Bayh and I have championed, responsible fatherhood. Why? Because in our 
culture today there are crosscurrents about what fatherhood means. In 
certain subcultures, fatherhood means having children, period. What are 
the effects in that subculture of the role of the father being simply 
biological and nothing more?
  When fathers are absent versus when fathers are involved: Fathers 
absent, two times more likely to abuse drugs; fathers absent, two times 
more likely to be abused; two times more likely to become involved in a 
crime; fathers absent, three times more likely to fail in school; three 
times more likely to commit suicide; and five times more likely to be 
in poverty.
  The evidence is in. There is a role for society to encourage fathers 
to be more than biological fathers, but to be involved in the rearing 
of that child, preferably in a committed relationship with the mother. 
These numbers all go up if you have committed, stable, low-conflict 
relationships between the mother and the father.
  So there is a role for government, as a public policy, for the 
benefit of children and the community in which they live because these 
children just do not, through this activity, affect themselves, do 
they? No, no. When they commit crimes or when they abuse drugs or when 
they commit suicide or when they live in poverty, that does not just 
stay with them. So there is a real public policy objective in promoting 
stable marriages and fatherhood.
  No. 4, some healthy form of masculine identity. What does that mean? 
Well, they go on--which is based on the need for at least one 
distinctive, necessary, and publicly valued contribution to society. It 
is especially important today because two other cross-definitions of 
``manhood,'' which is the definition of manhood being ``provider'' and 
``protector,'' are no longer distinctive now that women have assumed 
those roles in society.
  So what are they saying here? They are saying that men have an 
identity crisis. The traditional role of the man is no longer the 
traditional role of the man. You say: Well, what's the big deal? 
Everybody is equal.
  When you rob someone of a role they believe they have, as society in 
some degree has, then you have a belief among large segments of society 
that they have no role; they do not have to provide; they do not have 
to protect; they do not have to nurture. That is not the role anymore 
for men in society. It simply is to pursue selfish goals, but they are 
not needed anymore.
  We can all go back about the genesis of this and the movement that 
caused it, but the bottom line is, it is real, and it is reflected in 
these numbers. So it is important for society to say to men that 
marriage is good and expected and is healthy and is optimal, and to 
have laws that say that dropping specimens off at a sperm bank is not 
fatherhood, but committed relationships with the mother of your 
children in a marriage that gives you and her and your children 
security is expected.
  Now, I know there are a lot of cultures that do not support that, 
subcultures in America, but the legal, statutory reflection of the 
culture should be that ideal. Our laws should reflect the ideal of what 
is best for that man, for that woman, and for those children.
  No. 5, the transformation of adolescents into sexually responsible 
adults; that is, young men and women who are ready for marriage and to 
begin a new cycle. This relates the key contributions that men and 
women make to the upbringing of young men and young women.

[[Page 15368]]

  As the father of boys and girls, I make different contributions as a 
father to my girls than I do to my boys. They look at me different. I 
am different in their minds, and I represent different things that will 
have an effect on them in their ability to have successful 
relationships in the future. That is real.
  Now, we can all play games that people can substitute, that it does 
not matter whether it is two men or two women or one man or one woman 
or no women or no men or whatever, but the fact is, there is a 
difference. We tend to try to deny that. It is politically correct to 
say there is not a difference, but the fact is that fathers and mothers 
contribute different things to children.
  So why did I go through all this? It is important to understand what 
we are talking about here is very important, and what is being talked 
about in the courts across America is destroying this very important 
institution to the American society--to any society.
  Now, some have suggested this is not a real assault, that it is 
trumped up for political purposes. Two of the speakers, remarkably--
Senator Clinton and Senator Dayton--both of them said--I will quote 
Senator Clinton where she says: The Defense of Marriage Act, known as 
DOMA, has not even been challenged at the Federal level. That is a 
quote from her statement today. For the record, false. False. Senator 
Dayton made a similar comment. I think others have made similar 
comments, except I have the transcripts of these two Senators. False. I 
submit for the record that there are pleadings in Florida and pleadings 
in Washington State challenging the constitutionality of the Defense of 
Marriage Act.
  So the idea that the Defense of Marriage Act is not under assault is 
not true. The Senator from Colorado a few minutes ago laid out the 
State-by-State challenges that are going on, some with respect to the 
Massachusetts marriages, some with respect to the Oregon marriages, 
some with respect to the New York marriages, some with respect to the 
California marriages, and we go on and on. And there will be more.
  I think there are challenges in 46 States to traditional marriage as 
being unconstitutional. So to suggest that 46 States--whether it is 
civil unions or marriages--are being challenged by same-sex couples or 
whether it is two States where the Defense of Marriage Act is being 
challenged, that somehow or other that is not a serious threat when one 
State has already determined that there is a constitutional basis, and 
in writing the decision referred to a U.S. Supreme Court case decided 
last year--Lawrence v. Texas--in making the determination that you 
could not discriminate against same-sex couples with respect to 
marriage, and we do not believe here that this is a serious assault? 
What do we need? Do we need all the States and the Supreme Court to 
decide this issue, and then we say: OK, now we decide. Well, the 
Senator from New York said her father used to refer to it as closing 
the barn door after the horse has left.
  By the way, this is a remarkably similar strategy to that which was 
used in the 1950s and 1960s with respect to the issue of abortion. What 
happened in that case was a little different. Instead of the courts 
imposing abortion on the States--although that may have been done; I am 
just not aware of, maybe as well as I should be, the history--but I do 
know certain legislatures throughout the country began changing the 
statutes with respect to abortion, which, of course, 50, 60 years ago 
was basically illegal in every State in the country. Over time, just a 
few States changed their law. This created conflicts between the States 
as to how they were going to deal with this issue.
  The same thing is happening here State by State. At a minimum, there 
will be more States because there are certainly a lot of liberal 
justices of supreme courts in the various States around the country. 
There will be more States that will ``find'' this constitutional right 
either within the Federal or State constitution or both.
  There will be another State and another State that will accept a 
redefinition of marriage. And the conflicts that will result as a 
result of that are reflective of the one case I just submitted, which 
is the Washington State case. In the Washington State case, a lesbian 
couple married in Canada where they have such laws and came to 
Washington State and filed bankruptcy. So they wanted distribution of 
assets based on marriage. And the State of Washington just said: We 
have to figure out whether or not this is constitutional, whether we 
have to accept this or whether the Defense of Marriage Act bars us from 
doing so.
  We will get this in State after State after State, and there will be 
conflicts. There will be court decisions all over the place. The 
Supreme Court will have to come in and say: We didn't want to do this. 
We feel our hand is forced--just like Roe v. Wade--that this is an 
issue that cannot have this kind of disparity of unequal treatment 
between States, and we will then settle it for everybody, which will, 
of course, mean a complete redefinition of marriage. You don't have to 
have a crystal ball to figure this one out.
  We can sit back. This is the great, this is the classic just sit 
back; say what you believe the public wants to hear; profess your 
allegiance to traditional values, and then let someone else do the 
dirty work for you. And it will happen. It will happen. Maybe more 
dramatically, the court may say we are going to take this on and do it 
ourselves. There seems to be a majority in the court to do that. But 
even if they are not aggressive, eventually it is a done deal.
  And everyone will come out here and profess: No, the States can deal 
with it. The States can handle this. We are for States rights. To hear 
the Senator from Massachusetts talk about States rights, I thought 
maybe the ceiling would fall. Issue after issue, time after time, 
Members on that side of the aisle vote continually to take power from 
the States, continually to federalize every issue.
  But when it comes to something as irrelevant, something as 
unimportant as the family and marriage, no, no, we can't deal with 
this. No, this is in the general State purview, as if passing major 
education reform isn't a State issue. That is a State issue. As if 
doing welfare isn't a State issue. State issue. Transportation, State 
issue. Health care, welfare, all of these issues which we spend most of 
our time and an increasing portion of our money on are all under the 
purview, under this Constitution, of the States, and we have no problem 
dictating to the States how to run their schools, how to run their 
hospitals, how to run their welfare departments. But not when it comes 
to protecting this fragile institution, this institution that is so out 
of favor within the popular culture.
  Listen to the music. Do you hear affirming things about the treatment 
of women in the music in the popular culture today? Do you hear songs 
about commitment and marriage in the popular culture today? Do you see 
movies reaffirming the traditional role of fathers raising their 
children and responsible actions on the part of parents and would-be 
parents? This is an institution that is swimming against a toxic tide 
of popular culture that wants to just drown it.
  As the justices from Massachusetts said, speaking for our culture, I 
believe, marriage is a stain on our laws that must be eradicated. That 
is how Hollywood views marriage. That is how the music industry views 
marriage. That is how the media views marriage.
  What are they writing about here? Are they writing about this 
marriage debate? No, they are writing about the conflict between 
Republicans in trying to get a vote on the floor of the Senate. Give me 
a break. One AP reporter writes this story, and he is a decent man. I 
know he can't be this uninformed.
  What are we trying to accomplish on the floor of the Senate? We have 
two amendments on this side of the aisle. It has not been unknown that 
there have been actually as many as three amendments on this side of 
the aisle. This is not unknown to anybody. What do we want to do? Well, 
we can't put forward both so we put forward one, the one that we 
believe is our best, our optimal

[[Page 15369]]

solution. By the way, that is done with frequency in the U.S. Senate, 
where you come forward with what you want to accomplish. And if you 
can't get that done, what do you do? You offer plan B, what you think 
will get something accomplished but not as much as you want.
  And so we wanted to offer plan A. And if plan A didn't work--A, 
Senator Allard's amendment--then we would offer plan B, which happened 
to be Gordon Smith's amendment.
  That is not confusion or division. It is simply a time-tested, age-
old strategy in every dealing that I am aware of in life, which is you 
try to get as much as you can. And if you can't, you take plan B and 
try to get as much as you can there. But that is not what people write. 
They don't want to write about the substance of the marriage debate, 
which by and large has not really been engaged in here.
  The substance on the other side of the aisle when it comes to this 
issue is that, No. 1, it is political. No. 2, we should be talking 
about homeland security. I am for homeland security. But there isn't 
enough money in the world that you can spend to secure the home more 
than marriage. You want to invest in homeland security? You invest in 
marriage. You invest in the stability of the family. That is what this 
amendment is.
  I hear from speaker after speaker: There are more important things to 
debate on the floor of the Senate than the family. Think about that. 
There are more important things to debate: homeland security, spending 
more money, which, by the way, won't be spent until October 1 of next 
year. Spending a few billion more dollars is more important than 
preserving the traditional family in America. No, they haven't been 
debating the substance.
  I asked the Senator from Alabama earlier, I don't believe anybody has 
come forward and said they are not for traditional marriage. I think I 
am wrong. I was handed Senator Kennedy's speech.
  Senator Kennedy said: I happen to be someone that supports the court 
decision in Massachusetts. I am proud of them. I happen to support the 
court decision in Massachusetts. I am proud that four justices 
redefined and forced the Massachusetts legislature to rewrite their 
laws, and they are the only ones who are allowed to do that, forced the 
legislature to rewrite their laws with respect to marriage. I am proud 
of them.
  Do we hear any comment about this agenda? What is this agenda? I am 
proud that four unelected judges can usurp the authority of the 
legislative branch and roll them and force them to do something that 
the people of Massachusetts don't want. I am proud of them.
  I don't think John Adams would have said the same thing. I don't 
think Jefferson or Madison would have. One of my colleagues referred to 
Madison, that he would be with Madison. I don't think Madison would see 
it as the role of judges to rewrite the Constitution when they have a 
hankering to do so. I think Mr. Madison would have a big-time problem 
with what he would see as an abuse of article V. Article V is an 
amendment of the constitutional process. Nowhere in there do I see Mr. 
Madison talking about judges changing the Constitution when they feel 
like it. But, you see, as the Senator from New York, Senator Clinton 
said, ``I am in agreement that the Constitution is a living and working 
accomplishment.''
  My question is, who is doing the living? You see, I thought from 
article V that the living part was those of us here in the legislature, 
those of us across the States who would determine when it is 
appropriate to institute new rights or obligations in the Constitution. 
That is what I thought this living, dynamic document was. But that is 
not what those who oppose this amendment believe the Constitution is, 
no. The living that is going on is not the American public doing the 
living. Oh, no. It is a few hand-picked judges who have the right to 
breathe life into the Constitution. See, they are the ones who get to 
change the Constitution, without going through this complex, sort of 
long, drawn out, tedious, expensive process of getting two-thirds of 
the votes here in the Senate, and two-thirds of the votes in the House, 
and three-quarters of the State legislatures.
  By the way, in responding to an earlier comment of a colleague on 
this side, it is not three-quarters of the United States, it is three-
quarters of the state legislatures by a majority vote.
  By the way, from everything I have seen, and from every poll I have 
seen across America, those votes are probably there. The problem here 
is in this great institution that is supposed to be a reflection of 
American values, 99 to 1, we are all for traditional marriage. But it 
is like a mirror in this case because it is not real. You can sort of 
look at that reflection and try to touch it, but it is not real, it is 
only a reflection because they are not voting that way.
  If you want to protect traditional marriage, you should vote for 
cloture and for one of these constitutional amendments that will be 
offered. The Hippocratic oath says, ``First, do no harm.'' My question 
to those who are going to vote ``no'' tomorrow is, what harm do you 
believe a constitutional amendment does to the institution of marriage, 
which you say you support? You support the definition within this 
constitutional amendment that marriage is between one man and one 
woman. All but one Senator said they support that. There may be more 
who don't. I suspect maybe a lot more, but I don't know. Probably a few 
more are right now sort of staying low, saying all the right things, 
what the polls indicate is popular, and have their fingers crossed and 
are thinking let this issue pass; let this issue pass by and let it 
quiet down, and then let the courts do what we want them to do. Then we 
will get what we need.
  But if they don't feel that way, if they are truly in support of 
traditional marriage, which many profess they are--and I argue I would 
probably agree most are in favor of traditional marriage--then what 
harm do we do by putting language into our Constitution to protect that 
institution which everybody says they are for? What harm is done? Do we 
harm the Constitution? Do we cheapen the Constitution?
  Someone suggested this doesn't rise to the level of a constitutional 
amendment. I remind people what the last constitutional amendment was. 
It is fun reading. It is always good to pick up the Constitution. I 
know Senator Byrd carries one and hangs out with it all the time. I 
will read the 27th amendment:

       No law varying the compensation for the services of 
     Senators and Representatives shall take effect until an 
     election of Representatives shall have intervened.

  Congress cannot get pay raises until after the election. Big deal. By 
the way, I know one Senator said, ``I am going to stand with James 
Madison.'' That is what the Senator from Arizona said. The 27th 
amendment--do you know what it is called? The Madison amendment. James 
Madison, the architect of the Constitution, had an amendment that said 
Congresses cannot receive pay raises. A big, weighty issue. The fate of 
the country hangs in the balance. ``I will stand with James Madison.'' 
Do you know what Madison said? If you believe enough in something, you 
put it in the Constitution if that is the only way you fix the problem. 
I don't believe anyone can look at the legal state of play in this 
country and say there is any other real option.
  A philosopher named Christopher Lash said: ``Every day we get up and 
we tell ourselves lies so we can live.'' What did he mean by that? 
Well, there are certain things we have to tell ourselves so we can go 
on and do what we want to do, certain truths we have to ignore so we 
can go on and live our lives.
  There are all these people dying and suffering in Africa from AIDS, 
and we tell ourselves there is not much I can do about that so I will 
go on with my day. There are 1.2 million children dying from abortions 
in this country. We tell ourselves that is a tragedy, but there is 
nothing I can do, so I can go on and have my breakfast. We all do it. I 
do it. Everybody does it. We tell ourselves little lies so we can feel 
comfortable with the decisions we make to go on with the life we want 
to live and

[[Page 15370]]

make the decisions that make us feel comfortable.
  The Senate tomorrow is going to tell itself a little lie--that we 
don't need to do this, that families will be OK without us, and the 
States can handle the issue. Now, some will say they don't believe that 
is a little lie. They will say they disagree with that. We can all 
rationalize whatever decision we want to make. We can all make our 
case. In the history books, when this time is written about, we will be 
able to make our case. We will be able to say, you know, had I known 
this was going to happen, I would have voted differently. I would have 
stood with Mr. Madison and voted for that amendment. But how was I to 
know? How was I to know this was the beginning of the end of marriage, 
and the beginning of the end of the family in America, and the 
beginning of the end of the freedom we hold in this country so dear, 
where Government doesn't run and have to take care of every need 
because nobody else is around to do it.
  If you look at the socialist countries that have gone in the 
direction of destruction of the family, you only need to look at the 
imposition and heavy weight of government. Why? Because there is no one 
there to pick up the pieces. You can say, if I had known, if I had only 
known. Every day we get up and tell ourselves lies, so we can live. The 
problem is this lie hurts the future lives of millions of children in 
America. And they are going to have to live with the consequences of 
the lie you tell.
  We have an opportunity to do something so simple, so basic, so 
natural: Simply affirm what this country has known for hundreds of 
years, what the Western World has known since its inception, and simply 
put in a document that represents the best of America the ideal that 
children deserve moms and dads; that the glue of the family, marriage, 
is worth a special place. Do we not believe that marriage, that glue 
that binds men and women and children together, deserves a special 
place right next to limiting pay raises of Members of Congress? Is that 
a special enough place? Is it not a special enough place for something 
that we know is essential for the future of America?
  We debate a lot of important issues here, but there is nothing--
nothing--more important than the future survival of this country. That 
is what we are here for. We took that oath of office. Why? To preserve 
and protect. That is our job. We have other jobs outside this Chamber, 
but within this Chamber our job is the preservation of these United 
States.
  I do not see how anyone can possibly imagine a whole nation without 
whole families. Yet we will choose tomorrow to risk everything. Think 
about this. We will choose tomorrow to risk everything. Why? What is 
worth this risk? What is worth this experiment in sociology heretofore 
unseen? What is worth that much?
  I ask the silent chairs on the other side of the aisle: What is worth 
this much not to give marriage a chance? As broken and as battered and 
as shattered as the institution is, let's use this opportunity, in a 
time of horrible, divisive politics, to band together and say there is 
one thing on which we can agree: that men and women should bind 
together to have children and raise them in stable families. Can we at 
least agree on that?
  What will the answer be? What will all of God's children say 
tomorrow? No. No. No, I can't go that far; sorry, got too many other 
things to worry about; too political an issue; too divisive an issue; 
too intolerant an issue; just trying to bash people; you don't really 
care about families; this is simply about politics. The lies we tell 
ourselves every day just so we can live.
  I come here not because I want to win an election, not because I want 
to bash anybody or hurt anybody. I come because this is good for 
America. This is the foundation of everything that makes America great, 
and it is worth saving. Give it a chance. Don't snuff out this candle 
that is just barely keeping the light on. Give it a chance. I accept 
the fact that it is in trouble. I accept the fact that we have darn 
near blown it, but don't use that as an excuse to do nothing. This is 
not about hate. This is about giving our children the best chance of 
having a bright tomorrow.
  Mr. President, I yield the floor.
  The PRESIDING OFFICER. Who yields time? The Senator from Colorado.
  Mr. ALLARD. Mr. President, I was definitely moved by the presentation 
that my colleague from Pennsylvania made on this issue. I thank him for 
his comments.
  One thought that came to my mind as I heard his comments was that I 
do not think James Madison--who, by the way, is a hero of mine--would 
have envisioned the need, and his contemporaries would have envisioned 
the need, for protecting marriage. I have no doubt in my own mind that 
if he had thought that marriage would need that protection that he and 
his contemporaries would not have hesitated to have made that a part of 
the Constitution.
  As we have gone over this debate, I have been somewhat frustrated to 
hear from opponents of this amendment constant criticism and 
misrepresentation about what this amendment is all about and what it 
does. Over the weekend, I received a number of indepth legal analyses 
from legal experts, scholars, and law professors from around America. I 
want to point out that when we are amending the Constitution, it is 
serious business. I have spent considerable time consulting with legal 
scholars, constitutional scholars, consulting with my colleagues, and 
working with staff in the Judiciary Committee because I wanted to get 
it right.
  In an effort to clear up some of these ridiculous charges made 
against this marriage amendment, I ask unanimous consent that there be 
printed in the Record a brilliant letter on the meaning of the 
amendment by eight law professors.
  There being no objection, the material was ordered to be printed in 
the Record, as follows:

                            [July 12, 2004]

         The Meaning of the Proposed Federal Marriage Amendment


                              Signatories

       George W. Dent, Jr., Schott--van den Eynden Professor of 
     Law, Case Western Reserve University School of Law.
       Robert A. Destro, Professor of Law, Columbus School of Law, 
     The Catholic University of America.
       Dwight Duncan, Associate Professor, Southern New England 
     School of Law.
       William C. Duncan, Visiting Professor, J. Reuben Clark Law 
     School, Brigham Young University.
       Scott FitzGibbon, Professor of Law, Boston College Law 
     School.
       Charles J. Reid, Professor of Law, University of St. 
     Thomas.
       Lynn D. Wardle, Professor of Law, J. Reuben Clark Law 
     School, Brigham Young University.
       Richard G. Wilkins, Professor of Law, J. Reuben Clark Law 
     School, Brigham Young University.
       In the context of the recent and ongoing debate over a 
     proposed marriage amendment to the United States 
     Constitution, various questions concerning the meaning and 
     interpretation of the proposed amendment have been raised by 
     opponents of the measure. As supporters and proponents of the 
     amendment, we have prepared this memorandum in an effort to 
     clarify the meaning and intent of the proposed marriage 
     amendment.
       Introduced as Senate Joint Resolution 40 by Senator Wayne 
     Allard and 18 co-sponsors, the marriage amendment provides: 
     ``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.''

                                Summary

       We are concerned that many arguments voiced in opposition 
     to the marriage amendment are based in hypothetical 
     speculation, rather than serious constitutional analysis. The 
     FMA is a simple, two-sentence amendment which carefully 
     addresses the growing threat to marriage in the United 
     States. In doing so, the Amendment is deliberately crafted so 
     as to preserve the integrity of state regulatory authority 
     over marriage and poses no plausible threat to individual or 
     private organizational actors.
       The first sentence of the amendment maintains a common 
     definition of marriage throughout the United States, ensuring 
     consistency in the public legal status which is deeply 
     embedded in both state and federal law. The second sentence 
     reiterates and expands upon the first sentence, ensuring that

[[Page 15371]]

     questions of marriage-like benefits for unmarried couples are 
     reserved to legislative processes. The amendment would have 
     no effect on the various ways that governments might try to 
     provide benefits to couples or individuals based on something 
     other than their marital status.
       All implausible arguments to the contrary, the proposed FMA 
     would have no effect on personal arrangements, religious 
     ceremonies or other actions by private individuals or 
     organizations. The FMA takes advantage of the U.S. 
     Constitution's provision for the people's representatives to 
     respond to their will and protects, rather than interferes 
     with the principles of federalism. It is a common-sense 
     response to a very real threat to the ability of the people 
     in this nation to protect the most basic institution of 
     society as it has been understood throughout recorded 
     history.


                    The FMA is Clear and Unambiguous

       A recent memo, circulated among members of Congress, argues 
     that the first and second sentences of the proposed amendment 
     contradict one another, in that the second sentence allegedly 
     authorizes same-sex marriage under certain circumstances. 
     Such a reading of the second sentence is unwarranted, and 
     does not comport with the clear language of the amendment.
       There can be no contradiction found between the two 
     sentences of the amendment. At most, it could be argued that 
     the second sentence is redundant with respect to marital 
     status, repeating what has already been stated in the first 
     sentence. The first sentence of the amendment provides that 
     throughout the United States, marriage shall be the ``union 
     of a man and a woman.'' The second sentence states that no 
     state or federal constitutional provision shall be held to 
     require a different result. While this reiteration may be 
     arguably unnecessary, it is far from contradictory.
       The second sentence also serves another purpose, however, 
     preserving decisions about legal benefits to the deliberative 
     legislative process. In this respect, the second sentence 
     goes beyond the first, protecting the autonomy of state 
     legislatures to extend benefits according to the needs and 
     desires of their constituents. Both sentences must be read as 
     part of the same policy statement: marriage is an important 
     social institution throughout the United States, and cannot 
     be redefined by judicial fiat. The people of the individual 
     states reserve authority to extend or withhold benefits to 
     same-sex couples through their elected legislative bodies.
       It has been suggested that this plain reading of the 
     marriage amendment is merely a smokescreen for an amendment 
     which will later be used to in efforts to strike down 
     domestic partnership and other civil benefit arrangements. 
     Opponents cite litigation challenging California's domestic 
     partnership law or Philadelphia's ``life partnership'' 
     ordinance as evidence that the FMA will be used similarly. 
     Whatever the particular merits of the California and 
     Pennsylvania litigation, the outcome of such claims are based 
     upon technical provisions of state law, and will have little 
     bearing upon the interpretation of the proposed marriage 
     amendment.
       While there are many in the United States who would prefer 
     that the Congress propose an amendment which would ban civil 
     unions, domestic partnerships, or other similar arrangements 
     at the state level, the interpretation put forward by the 
     sponsors and other supporters in Congress has been clear and 
     unambiguous: the marriage amendment is intended to define 
     marriage as the union of a husband and wife, and to reserve 
     questions of benefits for state legislative bodies.


            The FMA Does Not Interfere with Private Actions

       Certain opponents of the marriage amendment have argued 
     that the amendment will impinge upon the actions of private 
     individuals and organizations, including religious 
     organizations. To the contrary, the amendment touches only 
     the public legal status of marriage, recognized in all fifty 
     states. Private actions, whatever the source, can neither 
     create a legal marriage nor violate the text of the 
     amendment. Until recently, all fifty states have had laws 
     which recognize marriage only as the union of a man and a 
     woman, and yet private actors remain free to extend domestic 
     partner benefits, perform or engage in commitment ceremonies, 
     or even refer to themselves as spouses.
       It is difficult even to construct a theory on which an 
     amendment dealing with marriage might be applied to private 
     actors. Certainly the absence of language limiting the 
     amendment to government actors is not in itself evidence that 
     it is intended to apply as against private individuals. 
     Neither the Second, the Fourth, the Fifth, nor the Eighth 
     Amendment to the Constitution contains any explicit reference 
     limiting the scope to state actors, yet they are clearly 
     understood as such. For instance the Second Amendment says 
     ``the right of the people to keep and bear Arms, shall not be 
     infringed'' but it would be implausible to argue that as a 
     result, an employer could not ask an employee to leave their 
     weapons at home.
       Marriage has long been a public legal status, directly 
     conferred and regulated by law in each of the fifty states. 
     The solemnization of a marriage, even if performed by clergy 
     or other religious figure, requires state licensure and has 
     legal effect. Concern over the impact of the marriage 
     amendment on private actors appears to be rooted in a 
     misconception of marriage as a private relationship. 
     Marriage, however, is not merely a private relationship, but 
     a public legal status. As such, all constitutional reference 
     to marriage is properly understood as a reference to that 
     legal status.


     The Amendment Process is Democratic Decisionmaking at its Apex

       Opponents often claim that the FMA somehow infringes the 
     democratic process by writing something new into the 
     Constitution. Under this theory the Bill of Rights and each 
     subsequent amendment have displaced democratic 
     decisionmaking. The Constitutional amendment process ensures 
     significant popular input, both in the process of approval in 
     the Senate and House of Representatives and in the 
     ratification process where a supermajority of states have to 
     concur. Of course, after the amendment is ratified it limits 
     future conduct, but so do all Constitutional provisions. An 
     amendment that has been ratified can also be changed through 
     the democratic process as the experience of Prohibition 
     demonstrates.
       The national consensus required for a formal amendment to 
     the Constitution is not the only way in which the meaning of 
     the Constitution is amended, however. The other process 
     (apparently favored by opponents of the FMA) involves a 
     lawsuit with handpicked plaintiffs in a sympathetic 
     jurisdiction where only arguments filtered through the legal 
     briefing process will be heard. Then, the amendment is made 
     by a majority of judges on a court who construe 
     constitutional text to require a redefinition of marriage. At 
     least the FMA would have to be ratified by three-fourths of 
     the state legislatures, not a mere handful of judges who hear 
     only arguments made by lawyers.
       Finally, as already noted, the amendment would still allow 
     state legislatures to enact laws that provide benefits to 
     unmarried couples.


                   The FMA is a Defense of Federalism

       Some opponents of the FMA argue that it violates the 
     principle of federalism by intruding into domestic relations 
     law, an area traditionally governed by state law. This 
     argument presupposes that there is no threat to federalist 
     principles from the ongoing attempt to secure a redefinition 
     of marriage through the courts. There is reason to believe 
     that some or many courts would adopt an expansive reading of 
     the Full Faith and Credit Clause or other state or federal 
     constitutional provisions that would in effect nullify the 
     policies of states which would choose not to recognize same-
     sex marriages. Of course, this, as much as a federal marriage 
     amendment, would create a national marriage policy and 
     eviscerate any federalist protection of marriage laws.
       It should be noted that the question of marriage validity 
     is already a matter of at least some federal concern. The 
     right-to-marry cases all invalidated state restrictions on 
     marriage on federal grounds. See Loving v. Virginia, 388 U. 
     S. 1 (1967); Zablocki v. Redhail, 434 U.S. 374 (1978); Turner 
     v. Safley, 428 U.S. 78 (1987). As the Defense of Marriage Act 
     indicates, federal law relies on a definition of marriage in 
     extending certain benefits such as Social Security death 
     benefits, 42 U.S.C. 405. and other federal retirement 
     programs. See Hisquierdo v. Hisquierdo, 439 U.S. 572 (1979). 
     At least since the U.S. Supreme Court began the process of 
     incorporating federal constitutional guarantees in its 
     Fourteenth Amendment jurisprudence, a growing number of 
     federal constitutional provisions have limited the states' 
     power.
       As to appropriateness, it must be asked whether it is wise 
     to have fifty different marriage policies in the United 
     States. While there is obviously significant room for 
     variations in many (probably most) state policies, there is 
     some need for uniformity. This is an axiomatic presupposition 
     of a federal constitution. Many of the specific policies 
     requiring unity are specified in the national constitution. 
     The most important examples are included in the limitation on 
     state power, since they ensure state uniformity in such 
     matters as coining money or exercising a foreign policy. U.S. 
     CONST., Art. I, Sec. 10. Perhaps most obvious is the 
     Guarantee Clause which rests on the assumption that while 
     specifics of state government may vary, at a minimum ``[t]he 
     United States shall guarantee to every state in this union a 
     republican form of government.'' U.S. CONST., Art. IV, 
     Sec. 4. The FMA stands for the proposition that the basic 
     legal definition of marriage is a fundamental policy of this 
     type.
       Finally, if \3/4\ of the states ratify the FMA, this would 
     signal an acceptance of a super-majority of states of any 
     minimal limitation on their power just as the ratification of 
     the 19th Amendment allowed state legislatures to acquiesce in 
     the limitation of their right to deny women the vote.


      The FMA Does Not Unduly Constrain the Branches of Government

       The memo charges that the proposed FMA would ``take the job 
     of constitutional interpretation away from all three branches 
     of government.'' While this is technically true (and is true 
     of all other Constitutional

[[Page 15372]]

     amendments that affect government power), it is also somewhat 
     misleading. In practice, the judicial branch has been almost 
     alone in construing the meaning of state constitutions. Thus, 
     the, major thrust of the FMA is to curtail judicial 
     redefinition of marriage. To the extent other governmental 
     actors want to use a reading of the constitution to justify a 
     redefinition of marriage (such as when a mayor issues 
     marriage licenses to same sex couples saying the constitution 
     made him do it), they would be constrained by the FMA but 
     such a practice is not likely to be widespread. A 
     legislature, in fact, would be able to offer marital benefits 
     without any constitutional justification for doing so.
       Additionally, the memo says that the ``federal Constitution 
     should not purport to say what state law does or does not 
     mean.'' Taken at an extreme, this would negate the U.S. 
     Supreme Court's decision invalidating bans on interracial 
     marriage or, in fact, any federal Constitutional limitation 
     on state law. At least the FMA would have to be ratified by a 
     super-majority in the states it is regulating.


               The FMA Gives the American people a Voice

       Some have argued that the proposed marriage amendment will 
     increase the role of the judiciary in determining the 
     definition of marriage and its legal incidents. To the 
     contrary, the amendment would resolve current marriage 
     disputes pending in at least 11 states, while establishing a 
     uniform rule of law which minimizes the scope of future 
     litigation.
       In recent years, five primary fields of marriage litigation 
     have evolved: (1) constitutional claims for same-sex marriage 
     (including both state and federal claims); (2) constitutional 
     claims for marital benefits; (3) statutory claims for marital 
     benefits; (4) constitutional claims for interstate marriage 
     recognition; and (5) claims for interstate recognition based 
     on state statute and public policy. Of these five broad 
     areas, the proposed marriage amendment would eliminate (or 
     greatly reduce) the role of judges in resolving 
     constitutional claims for same-sex marriage, marital 
     benefits, or marriage recognition. Statutory claims for 
     marital benefits would likely remain unaffected, while 
     interstate recognition claims would be minimized (but not 
     eliminated, due to the possibility that states will recognize 
     alternative civil benefit statuses).
       The creativity of attempts to make the plain meaning of the 
     FMA seem confusing and contradictory is illustrative of the 
     problem. These creative readings of constitutional provisions 
     by judges have precipitated the issue and the FMA will bring 
     a needed clarity to the matter. By confining the crucial 
     social issue of the definition of marriage to courtroom 
     battles, opponents of the FMA have left the people of this 
     nation with little choice but to amend the Constitution.
       Without an amendment, the marriage debate will continue to 
     be waged by attorneys and legal elites, in courts of law 
     where the American people have little or no voice. The 
     amendment process, on the other hand, will produce the type 
     of public dialogue and national consensus which this 
     important issue deserves.

  Mr. ALLARD. Mr. President, I yield the floor.
  The PRESIDING OFFICER. The Senator from Alabama.
  Mr. SESSIONS. Mr. President, I will briefly reiterate an important 
factor-- Senator Santorum has eloquently argued the legal and the 
policy issues that are so important with regard to marriage and why 
that institution needs to be strengthened, not weakened. Policies of 
government create tendencies in the culture. The recognition of same-
sex marriages would have a tendency to weaken marriage, and that is 
exactly the wrong direction we ought to go.
  How did it occur that we are debating the question of the definition 
of marriage in the Senate? It occurred because of a ruling last year by 
the U.S. Supreme Court in Lawrence v. Texas that clearly implied that 
the Supreme Court of the United States believes that the Equal 
Protection clause of the U.S. Constitution says one cannot have 
marriage only between a man and a woman, as has been done in every 
culture that I know of since the beginning of time and as I believe 
every single legislature that has ever sat in the history of the 
American Republic has so defined.
  These judges in Massachusetts have now followed up on that Lawrence 
case of the U.S. Supreme Court and taken it to its conclusion, citing 
the Lawrence case in its opinion. They have declared that the Equal 
Protection clause of the constitution of Massachusetts--basically 
similar to the U.S. Constitution--says one cannot treat same-sex unions 
differently from traditional marriage. That is a serious stretch, in my 
view. That indicates that our courts are losing discipline; our courts 
are imposing, through interpretations of the Constitution, their 
personal values on society. That is not correct.
  It undermines democracy. It undermines the power of the American 
people to decide for themselves how their culture and their society 
ought to be ordered. I believe very strongly in that. So it is not 
surprising to me that the senior Senator from Massachusetts, Mr. 
Kennedy, probably the leading defender of judicial activism in this 
body, is the only one who I have heard since we have been in this 
debate say he agreed with that activist decision. It is a decision by a 
court to step out and impose through interpretation of the language of 
the Constitution values on the American people of which they do not 
approve.
  Indeed, it is not even the values of the people of Massachusetts, as 
we know the Governor has roundly opposed this. The legislature has 
taken action. Efforts are being undertaken to pass a constitutional 
amendment to fix it. So even in the most liberal State in the Nation, 
even with Senator Kennedy--and his colleague, I suppose, opposing this 
amendment--the people and the legislature and the Governor do not 
approve of this. So certainly the American people have a right to be 
concerned.
  I see the Senator from Pennsylvania. He spoke on this. I have heard 
him speak on the issue of judges before. I would like to ask his view-- 
is this not just one more example of the divide and the difference of 
opinion that exists in this body about the role of a judge? Is this not 
indicative of what President Bush has expressed his concern about, 
which is activism in judges? Does not judicial activism undermine 
democracy when we have unelected judges setting social policy?
  Mr. SANTORUM. That is a great question. I say to the Senator from 
Alabama that going back to Madison, Adams, and the Massachusetts 
Constitution talked about the importance of a balance of powers, a 
checks and balances; that if one branch of the Government were to 
become too powerful then our Republic is in danger. Democracy itself is 
in danger.
  I think what the Senator from Alabama is referring to is the 
judiciary over the last several years, as a result of the feeling 
within certainly the liberal branch of the judiciary, that they can 
take on the role of a legislature in either passing laws in the form of 
judicial opinions or forcing the legislature to pass laws as a result 
of constitutional edict. It is getting to the point where there are 
these three branches of Government that all sort of operate under the 
Constitution, and we are supposed to be able to oversee each other. One 
might want to make the argument that maybe we are not doing a 
particularly good job of oversight; that we are not doing a very good 
job of checking the judiciary in its repeated attempt now to usurp 
power away from the people's branch.
  The people's branch is not the judiciary. It is not the executive. It 
is us. We are the ones who stand for election on a regular basis. We 
are the ones who are responsible to a local constituency. We are the 
ones who are in closest touch with what the people would like to see 
done. The judiciary is probably the most removed because they are 
completely unelected.
  Mr. SESSIONS. Could I interrupt the Senator and just follow up on 
that?
  Mr. SANTORUM. Yes.
  Mr. SESSIONS. The Senator is in part of the leadership in this Senate 
on the Republican side. Is it not true, based on his experience, that 
even the House and the Senate defend amongst themselves their 
prerogatives and do not the House and the Senate defend their own power 
against the executive and does not the executive branch defend its own 
power against the legislative branch?
  Mr. SANTORUM. It is one of the most disputed and argued--we have 
committees that argue over jurisdiction just between where bills are 
referred. We all know this in all of our lives, when there is an area 
of authority, that area of authority is protected, not just because it 
is one's particular area of authority but one knows what

[[Page 15373]]

they do in their job, particularly in the area of the legislature and 
of government, sets a precedent for how future people will do their 
job. If one gives up power, it is going to be hard for someone to get 
back when it may be necessary for them to do so.
  So we hold our power or fight for our rights not just because we want 
to exercise that power but because it is important institutionally that 
the power rest in the proper place.
  Mr. SESSIONS. Well, with regard to Madison, that father of the 
Constitution and a man I admire, he set up coequal branches and he 
expected each one to be a check and a balance on the other. Would not 
the Senator expect that Madison would have expected this Senate and 
this Congress to defend its prerogative to set policies concerning 
marriage and family and resist the encroachment of that power from the 
courts?
  Mr. SANTORUM. The answer to that is clearly yes. In fact, the Senator 
is a much better lawyer than I ever was, and I say that to the Senator 
from Alabama as someone who was a prosecutor and a very accomplished 
lawyer. I made it up to a fourth year associate, so I just started on 
my legal career and opted to do something different, and that was run 
for Congress.
  I recall when Madison wrote this Constitution about checks and 
balances, I am not sure he envisioned the role of the judiciary as we 
see it today. Marbury v. Madison sort of evolved as to what the role of 
the courts was in interpreting the Constitution, but clearly he gave 
the authority to change the Constitution not to the courts. He gave the 
authority to change and create rights within the Constitution to the 
Congress and to the States, as a check on the Congress, to make sure 
the States would go along with what we wanted to do.
  So to change this important document, this template for the 
Government that we have, he wanted to create a very high bar, wanted to 
make sure there was broad public consensus before we did something to 
affect this very important document. Now this is being used as an 
excuse not to change it, when judges do it every day. Every day a judge 
will attempt to expand, usually expand in some form or another, the 
meaning by adapting it to contemporary standards or contemporary 
jurisprudence.
  I don't know what that means, but it basically means I am the judge, 
I am the law, and I can do what I want.
  Mr. SESSIONS. I would follow up on that. I remember when I was a U.S. 
attorney in Alabama, I got a call from an educator who was looking at 
their school textbook and discovered it asked a question about amending 
the Constitution. The first section stated that you amend it according 
to the way the Constitution says it should be amended. And the second 
paragraph says the Constitution is amended by the courts.
  He asked me: You are the Federal attorney here; is that true?
  I said: No, it is not true.
  And he asked me to do a video.
  But the point is that you are right, I say to my colleague, Senator 
Santorum. This judiciary believes it has the power to amend the 
Constitution by taking words such as ``equal protection'' or ``due 
process,'' which in the hands of a person not disciplined can be made 
to say a lot of different things. But good lawyers and good judges know 
that can be abused and they do not do so.
  I think we are at a point where the American Republic has its 
democratic heritage at risk-- if we just get to the point where we can 
never respond, if they can make these rulings and the Congress can 
never pass an amendment to overturn them, or set our own policy on 
behalf of the people.
  Mr. SANTORUM. I would just say that checks and balances work as long 
as there is truly a balance. I think what we have is some people today 
in our judiciary, because of the activist judges, who are now saying we 
are all going to play by these rules, all branches of Government. Here 
is the game. Everybody comes to the poker table and we are going to 
play the game of governing the United States of America. And in the 
middle of the game, the court can say: I am changing the rules to my 
favor, so I win.
  In a sense, if you think about it, when the Court, the Supreme Court, 
rules, they win. The only way we can change that is through this rather 
complex procedure laid out in article V of the Constitution, which is 
not an easy thing to do. In a sense, the Court has figured out that the 
ability for Congress to check them is very limited. As a result, they 
are feeling more and more empowered to project their will on society.
  Mr. SESSIONS. I couldn't agree more.
  Mr. SANTORUM. That would be, first, I think, dangerous, period. But 
it worries me even more because the Supreme Court that sits right here 
in Washington, DC, is certainly not what I would call Main Street 
America, certainly not what I would call a community that shares the 
values of this metropolitan area, that shares the values of the 
heartland of America.
  I remember a good friend of mine telling me that postwar Germany was 
concerned about centralizing government in its major cities, Berlin or 
Bonn. So they did something rather unusual. They located their supreme 
judicial court not in their capital city or in their biggest city, they 
located it in the equivalent of Peoria, out in the country, where 
justices do not hobnob with the liberal elite that govern the nation. 
Either through governance-wise or governing media-wise. But they have 
to live and work with the common, ordinary people out across the great 
hills of Germany--and in our case the Great Plains of the United 
States.
  But we don't have that here. We have this constitutional court 
sitting right across the street in a town where the influences are not 
neutral. That is why I believe you see that every single Justice--bar a 
couple on this Court--once they get on the Court, tend to assimilate 
with this town and with the prevailing view in this town, which is big 
government, which is government knows best, and government can do all, 
and which is, from the culture standpoint, not exactly where I would 
say Mobile, AL, is, or Pittsburgh, PA, is. Where in Colorado?
  Mr. ALLARD. Sweetheart City.
  Mr. SANTORUM. Certainly not where the Sweetheart City is, in 
Colorado.
  The bottom line is that we have a court that is out of control. We 
have courts across this country, like in Massachusetts, that are also 
deciding, taking their lead from what is going on here in Washington, 
deciding to assert their authority and in so doing, taking power away 
from the American people to decide their own fate.
  Mr. SESSIONS. I thank the Senator from Pennsylvania. I think he is 
correct.
  I love the Federal courts. I practiced there full time for the 
biggest part of my legal career. I have tremendous respect for Federal 
judges. But I tend to agree with the Senator from Pennsylvania.
  The senior judges in the U.S. Supreme Court, many of whom are in 
their eighties, have become detached from America. If they follow their 
role as the Founders considered, which is simply to be removed, to be 
independent, to analyze the language fairly and justly without partisan 
or personal interest, that is good. But if they develop some idea that 
they know what is good for the country better than the people do, if 
they start drifting into that mentality, then it is very unhealthy for 
this society.
  And it is anti-democratic. It is not democratic. Because they have 
life-appointed positions. I have heard the Senator from Colorado speak 
on this and I know he believes the jurisdiction of the courts can be 
constrained, and he has taken a lead in that effort. He has done so in 
a highly intelligent and effective way, a proper way, by presenting 
legislation now to be discussed. But I am troubled by this trend that 
demonstrates to me that the Supreme Court is out of control.
  Senator Allard, in addition to the powerful need for this Senate to 
protect marriage because of the cultural impact and the impact on 
families and children that will occur if marriage

[[Page 15374]]

continues to decline, I think it is important for us to defend our 
legislative power against a branch of government that is encroaching on 
it. If we do not defend this power, if the Members of this body sit by 
and allow the courts to erode our power, then shame on us. And our 
children will not respect us.
  We defend our interests against the President. The Senate defends its 
interests against the House when they try to encroach on the Senate's 
power. And well we should. That is what Madison and the Founders 
expected. I think he would expect us to defend our legitimate interests 
against the encroachment of the courts.
  I thank the President and yield the floor.
  The PRESIDING OFFICER. The Senator from Pennsylvania.
  Mr. SANTORUM. Mr. President, I just want to read article V and make 
clear what the Senator from Alabama is saying. When it comes to 
amending the Constitution, the first two words, if we are going to 
change the Constitution of the United States, the first two words are 
``The Congress.''

       The Congress, whenever two thirds of both Houses shall deem 
     it necessary, shall propose amendments to this 
     Constitution....

  Shall propose amendments. It is the role of Congress to simply 
propose amendments. So what we are doing here today is not passing. We 
are simply proposing this to the American people.

       . . . shall propose Amendments to this Constitution, or, on 
     the Application of the Legislatures of two thirds of the 
     several States, shall call a Convention for proposing 
     Amendments, which, in either Case, shall be valid to all 
     Intents and Purposes, as Part of this Constitution, when 
     ratified by the Legislatures of three fourths of the several 
     States, or by Conventions in three fourths thereof, as the 
     one or the other Mode of Ratification may be proposed by the 
     Congress; Provided that no Amendment which may be made prior 
     to the Year One thousand eight hundred and eight shall in any 
     Manner affect the first and fourth Clauses in the Ninth 
     Section of the first Article; and that no State, without its 
     Consent, shall be deprived of its equal Suffrage in the 
     Senate.

  What this amendment says is to change the Constitution of the United 
States, we propose and the people dispose.
  What is happening in Massachusetts, across this country, and in the 
court across the street in the Supreme Court is the Supreme Court has 
taken this power unto itself which was clearly left to the people. That 
is what we are trying to address. We are trying to let the people 
speak.
  In the end, this debate simply is about letting the American people 
decide for ourselves what this rather important institution in our 
country is.
  Again, I can think of nothing more foundational in our society than 
the building block of that society which is the family.
  The American people have a right to make a decision. Every Member who 
has gotten up and talked has said they want to simply leave it to the 
State courts. But let me assure you, these decisions will not 
ultimately be made by the States. They will be made by the State 
courts. We have seen it in case after case after case. The courts will 
trump the legislatures.
  Again, ultimately, even if some States can hold back the tide, other 
States will not. If we have a hodgepodge or patchwork of different 
marriage laws in this country, I will assure you the Supreme Court will 
not stand aside and let that continue. It will be a legal nightmare. We 
will have to find conformity. Conformity will certainly be to permit 
this new form of marriage; thus, the end of the family as we know it.
  I know the Senator from Kansas and many others--the Senator from 
Texas and I have even pointed out--I know some are saying, What do you 
mean the end of the family? Won't we enhance marriage by allowing more 
people to marry? Won't marriage be enhanced if we allow more people to 
participate in that sacred bond? The evidence is in.
  In the places where we have seen the introduction of civil unions and 
same-sex marriages, marriage rates decline dramatically. Why? Because 
marriage loses its meaning. Marriage is no longer about families. By 
the way, what goes up? The rate of out-of-wedlock births. This is 
common sense, isn't it?
  What are we doing here? If marriage is simply about affirming one's 
own self-worth or affirming one's affection toward somebody else, if 
that is all it is, when those feelings go away, why stay married? If 
that is all it is, if it is all about me and my happiness, when I am 
not happy anymore, then I am not married anymore. If it is about me, 
then obviously it is not about them, the children. They only happen to 
come along. If marriage is simply about me, in the case of heterosexual 
marriage, if it is about me, and that is what a lot of divorce laws as 
a culture have trained us to believe marriage is about, then it is nice 
to have kids. It is a great thing to have kids--sometimes, some will 
say. Why stay married? If I am not happy because marriage isn't about 
children, it is about me, we reinforce that. We put a big neon sign, 
``Marriage is about me. Marriage is about self. Marriage is about 
making me feel good. And if I don't feel good anymore, then I will not 
be married anymore.'' That is all marriage is about. How can you argue 
it is about anything else? If any two people can get married whether 
they can have children or not, why stop at two?
  I mean if what we are doing, if marriage is a civil right as someone 
suggested--not in this Chamber, but I suspect one of these days will be 
mentioned in this Chamber, that marriage is a civil right--then why 
isn't it a civil right for three, or four, or five? If it is a civil 
right, why limit it to two? If I need to express my love to three 
people instead of one, if that is what fulfills me and makes me happy, 
then why shouldn't I be allowed to do that?
  This is a very slippery slope.
  The bottom line is, as I mentioned over and over again with respect 
to the reasons for marriage, self-affirmation is fairly low on the list 
of marriage importance in society. Why do we have such a legal 
institution? Why do we create laws that govern marriage? Why do we do 
that, if we didn't believe there was a societal good to be accomplished 
by it? Why do we give it elevated status?
  You sort of have to ask this question: Is it because we go around 
affirming love between two people? Why don't we want mothers and 
daughters to be married and give them special treatment? There are a 
lot of daughters who take care of moms who are sick, who are elderly, 
who sacrifice a lot to take care of their parents and don't get the 
benefits they would otherwise get if they were married to their mother. 
Why not give them, the people who are struggling, the right to marry so 
they can get the benefits of marriage? If they are going to argue that 
marriage is about affirming the love of two people, why not? But 
marriage is much more from the standpoint of society and the reason we 
have an institution of marriage. That is a minor part of this 
discussion. The reason we have legal statutes for marriage is because 
it is about having and raising children and stable families and bonding 
men and women together so they can provide for the common good. There 
are great benefits to society with marriage.
  We know if we cheapen marriage as other countries have done, fewer 
heterosexuals will be married, more children will be born out of 
wedlock, and more government will be needed to repair the dissolution 
of the family as a result of it. Why? For what? What great positive 
impact will change the definition of the marriage act? What great 
contribution will be made to society? Will we be able to welcome a 
loving society? Some will suggest we will. I don't know if we will. I 
think we are a loving, welcoming society with maybe the exception of 
the unborn. We are not particularly welcome to one-third of the 
children conceived in marriage who end up being killed by abortion. But 
beyond that, I think we are a pretty affirmative and tolerant society--
not that there are not people who aren't tolerant, not there are not 
people who do and say hurtful things.
  By and large, we have come a long way in our society. I think it is a 
good thing we have become tolerant of people. Tolerance does not mean 
we need to change a fundamental institution that provides healthy 
environments for

[[Page 15375]]

children and destroys the chance for children to have the ideal or make 
it a lot less likely.
  I think if you look at Netherlands, Scandinavia, and look at numbers 
in Canada and other places, it has an impact.
  I keep coming back to the fundamental right. The hour is late. I 
apologize to all folks who had to stay here late at night. The morning 
will come early.
  I keep sitting here and wondering why. Why does a body of people, No. 
1, profess publicly to believe that marriage should only be a union 
between a man and a woman and that this body believes it 
overwhelmingly; and, No. 2, knows that at least this issue is under 
contest and in dispute. There is no question about that. One State has 
changed the law.
  To suggest this is not a threat simply is not true. It is obviously 
under threat. It has been changed in one rather large State.
  There are cases in 11 other States, 2 cases challenging the Federal 
law, and in 46 States there are same-sex couples who are married from 
Massachusetts or one of the other States that have married people. Are 
all potential litigants.
  Number one we believe marriage is between a man and a woman. We know 
that institution is under assault. We know that it is a public good and 
that we are for it. We know that it serves a useful purpose. Then why 
won't we do something to protect it?
  We go down this logical train and we say, yes, all those things are 
true, but we can wait. Why? What is the point? Why wait? What is going 
to happen? Things will get worse. Certainly that will happen. Things 
get worse and then you feel you had the public support necessary to 
vote. Is that what this is about, getting the public support necessary 
to do this? Or do we really believe the States can handle it? Are we 
willing to take that risk? What is the risk if the courts do turn over 
more and more? We can come back and fix it later. I know a lot of 
people know this unspoken thing: Time is not on our side.
  The culture of what is educating our children at our university, what 
is polluting our children's mind from Hollywood, what is coming through 
the mainstream media is not a message in support of traditional 
marriage.
  Let's be honest. Does anybody question that the messages from those 
places where our children are getting the messages from the popular 
culture, from the educational establishment, is it all affirming of the 
traditional definition of marriage? One only needs to look at the polls 
of young people to know that is simply not the case.
  This is simply a timebomb. If we do not bring America's focus and 
attention on what marriage is and why it is important, and that it 
should be sustained, we will lose.
  Many have criticized me and Senator Frist and others for bringing 
this up, saying it is premature, saying we are picking a fight for 
politics or whatever. Let me assure you, if I thought it was not in the 
best interest of protecting the American people, I would not be here. 
If I did not think this was critical to the future of America, I would 
not be here at 10 o'clock at night when I should be home tucking my 
kids in bed. As Members know, I try to spend time with my kids. There 
is nothing more important, nothing more important than my kids and my 
wife, my family. That is why I am here, because there is nothing more 
important than my family.
  I hope tomorrow we get a big surprise. I always believe in that. I 
remember being here a few years ago and debating the issue of partial-
birth abortion, about this hour of the night, trying to override the 
President's veto in 1996 and then again in 1998. I remember staying up 
late the night before the vote, saying we are just a couple votes 
short; maybe if we go out and give it one last good try, we will win. 
And we didn't.
  Do you know what I found? I say to the Senator from Colorado, nobody 
is more constant, nobody, who I would rather see in the foxhole next to 
me than the Senator from Colorado. If you looked over there, he would 
be there. The Senator from Alabama, I say the same to him. These are 
stalwarts, folks who are not afraid to engage in cultural wars that are 
not fun to engage in because a lot of people say a lot of bad things 
about you.
  What I say to these Members and anyone listening, losing the vote 
does not necessarily mean losing the issue. We had a lot of losses on 
the issue of partial-birth abortion. I can say without fear of 
hesitation it was the greatest gift that God gave us, because it gave 
us an opportunity to talk to the American people about this scourge on 
our Nation. If the President signed this innocuous bill the first time 
in 1996, signed it and had a bill-signing ceremony, probably it would 
have been filed, no one would have known, hearts and minds would not 
have been touched.
  I believe our plan is not necessarily the best plan. Victory can come 
from defeat. In this case, the victory over the last 3 days, thanks to 
the work of these two fine Members and so many others who have come to 
the Senate to debate this issue, is an America that is waking up to 
something that we have forgotten about.
  I liken the institution of marriage to oxygen in the air. The human 
body needs oxygen to survive. Yet we take it for granted as we just 
breathe. And America as a society needs marriage and families to 
survive. Yet we take marriage and families for granted as if it will 
always be. We do a lot to keep good, healthy oxygen to breathe. We do 
very little to keep families protected, sheltered, and supported.
  Just as it is with oxygen, as you climb those high altitudes in 
Colorado, you find out when there is less and less oxygen, the body 
does not function quite as well. So it is with marriage. When there is 
less and less marriage, the body does not function quite as well. When 
you are climbing that mountain, and many people for years did not know 
what it was when they went up to the altitudes that they could not 
perform as well, and, for America, we are climbing that mountain and we 
are just wondering, Why aren't we doing as well?
  This is an opportunity to educate America as to the need for 
marriage, the need for families, not in a hostile way, not in a 
negative way. I don't think I have heard a negative word on the floor 
of the Senate about anybody or anything. We simply have talked about 
why families and marriage is necessary for America and why children 
need moms and dads.
  It is almost remarkable, but I suspect this is maybe the first real 
debate about family and marriage in the Senate. I guess in the Defense 
of Marriage Act we talked, maybe not. But it is a reminder to all how 
the things that sometimes we take most for granted are things that make 
us function as a society.
  I thank the Presiding Officer for the willingness to stay to this 
late hour and engage in this very important debate. I hope tomorrow, 
whatever happens, I don't know what will happen, that it turns out for 
the best interests of America's families. I always hope that no matter 
what we do and how the votes come, that somehow or other it will all 
work out for the best for America. I believe that. And I ask for the 
American public to pray for that.
  I yield the floor.
  The PRESIDING OFFICER (Mr. Sessions). The Senator from Colorado.
  Mr. ALLARD. Mr. President, I thank the Senator from Pennsylvania for 
his leadership on this issue. We would not be where we are today if it 
were not for his dedication and hard work. I also thank the Senator 
from Alabama for his help and dedication on this very important issue. 
I personally thank each of you.
  But I think when it is all over with--whether it is this year or next 
year or the year after that--a majority of the people in America are 
going to thank you for the work you have done to save the American 
family.

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