[Congressional Record (Bound Edition), Volume 150 (2004), Part 2]
[Senate]
[Pages 2258-2260]
[From the U.S. Government Publishing Office, www.gpo.gov]




                          TRADITIONAL MARRIAGE

  Mr. CORNYN. Mr. President, in 1996, the Congress voted overwhelmingly 
to pass the Defense of Marriage Act. This is a bipartisan bill, where 
Members of both parties in both Houses voted overwhelmingly to define 
marriage as an institution in traditional terms, between a man and a 
woman. This, as you may recall, was in part a response at the time to 
the Vermont decision implementing civil unions. This body, just like 
approximately 38 States, has now passed defense of marriage acts 
defining marriage in traditional terms.
  Last September, the Senate Judiciary Committee's subcommittee on the 
Constitution held a hearing at which we elicited testimony on this 
issue: Is the Defense of Marriage Act in jeopardy?
  The reason we had that hearing is because the U.S. Supreme Court, 
last year, made some pretty significant decisions, one of which was 
Lawrence v. Texas, which, if the rationale was going to be followed 
through, would seem to place the Defense of Marriage Act in jeopardy, 
saying that that somehow violated the Constitution, thus opening the 
way to marriage between same-sex couples.
  At the time we had people, as you might imagine, as in every hearing, 
some of whom said, oh, no, the Defense

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of Marriage Act will stand as long as it is the will of Congress and 
the will of the American people. Others said more presciently, as it 
turns out, that if there are judges who want to use the decision of the 
U.S. Supreme Court in Lawrence v. Texas, and to extend that, indeed, 
yes, the Defense of Marriage Act could be in jeopardy--indeed, the very 
definition of marriage between a man and a woman that is part of the 
Federal law and, as I said, I believe some 38 States.
  Well, of course, the day that many thought would come only remotely 
in the future came much more quickly, when the Massachusetts Supreme 
Court decided that, indeed, traditional marriage violated the 
Massachusetts Constitution. Now, some might say, well, since it was a 
matter of State constitution law, it is limited only to the State of 
Massachusetts. But a closer reading of that decision reveals that one 
of the bases upon which the Massachusetts Supreme Court decided that 
traditional marriage violated the Massachusetts Constitution was a U.S. 
Supreme Court decision in Lawrence v. Texas, interpreting the U.S. 
Constitution.
  So as it turns out, there is a much closer relationship between the 
State court constitutional decision and a decision under the Federal 
Constitution.
  Well, once the Massachusetts Supreme Court did, indeed, hold that 
marriage was no longer limited to men and women in Massachusetts, some 
said this was just a State matter and there was no reason for the 
Federal Government to get involved, and there was no reason for other 
States to be concerned. Yet over the last week or so, we have seen that 
individuals have moved--I saw one report in the Washington Post of 
people leaving Maryland and going to San Francisco and getting 
married--in defiance of State law, I might add--where the city of San 
Francisco, the mayor, and others, would issue marriage licenses, and 
then people would return to places such as Maryland. Or people would 
show up in San Francisco and, because of an act of civil disobedience 
by the mayor and municipal officials there, seek to get married, even 
though California law is consistent with Federal law and the law of 
other States defining marriage in traditional terms.
  Indeed, we see in New Mexico and in Chicago, where the mayor said if 
same-sex couples sought to get married, he saw no reason not to issue 
them marriage licenses. Indeed, in Nebraska, a lawsuit in Federal Court 
is being defended by the attorney general of Nebraska under the Federal 
Constitution seeking to define marriage in not untraditional terms, to 
allow it not to be limited to just traditional marriage.
  So this is not an issue that has been raised by Members of Congress 
initially. This is a matter that has been injected into the public 
arena by activist judges who have decided to radically redefine the 
institution of marriage in Massachusetts but the reverberations of 
which have resounded all across this Nation.
  It is in that light I believe we in this body have a responsibility 
to ask what are the implications of the Massachusetts decision in this 
brush fire across the country where local officials and others are in 
acts of civil disobedience defying State law to issue marriage licenses 
and what are the ramifications of the Massachusetts decision in terms 
of the continued viability of the Defense of Marriage Act at the 
Federal level.
  Next Wednesday morning, March 3, under the auspices of the Senate 
Judiciary Committee, Chairman Hatch has graciously agreed to allow the 
holding of a subcommittee hearing of the Constitution Subcommittee, 
which I chair, to have witnesses talk about what the implications are 
in terms of national policy, in terms of the institution of marriage, 
which I believe is important. Indeed, if Congress is to be believed, on 
a bipartisan, overwhelming basis Congress has said it is important and, 
indeed, that bill itself was signed by President Clinton.
  We cannot simply stand idly by, in my opinion, and let activist 
judges radically redefine the institution of marriage when it stands in 
stark relief and defiance of the will of the American people and 
certainly of the decision this body has made in terms of passing the 
Defense of Marriage Act. So we are going to have a hearing next 
Wednesday on that issue.
  I suspect others will come to the same conclusion I have, and that is 
the Constitution of the United States will be amended eventually; that 
this decision in Massachusetts will spread to Federal courts where 
others will cite this Massachusetts decision as precedent for an 
interpretation of the Federal Constitution that will strike down the 
definition of traditional marriage.
  I think that is important for a couple of reasons. I know there are 
people who are reluctant to even talk about this issue because they 
don't want to be painted or cast as intolerant or haters or bashers or 
any other term one might think of. Indeed, I think it is important to 
point out you can believe in the essential dignity and worth of every 
human being and still believe the institution of marriage is important 
to our civilization, to families, to providing the most stable means of 
establishing family life, but also to the benefit of children.
  The best interest of children requires us to do everything we can to 
encourage stable family life and, indeed, in the course of history, not 
just in this Nation's history, but throughout human history, I believe 
it is irrefutable that traditional marriage between a man and a woman 
is the firmest and most stable basis to establish family life. Indeed, 
that is the relationship, that is the basic social unit under which 
children thrive and are at reduced risk.
  When I was attorney general of Texas for 4 years, I had the 
responsibility to collect child support for some 1.2 million children. 
These were children who were from single-parent families. They were 
either born without their parents ever marrying or their parents 
married and then divorced and they, of course, were in the custody of 
one parent and the other parent would typically be ordered to pay child 
support. I became very much convinced, not just because of the social 
science, but because of what I saw as a person responsible for 
collecting that child support for these 1.2 million children, that 
children are at less risk when they have two loving parents who care 
about them and support them emotionally and financially; that certainly 
traditional families are the optimal situation in terms of children 
doing well and becoming productive citizens.
  At that time, of course, it had nothing to do with this new and 
revolutionary constitutional theory that has been thrust upon us by the 
Massachusetts Supreme Court that seems to be picking up around the 
country which I think we need to address, but really we need to, as a 
nation, reaffirm our commitment to doing what is in the best interest 
of our children.
  Indeed, it is irrefutable that intact families, traditional 
families--mom and dad providing role models for children they can then 
use when they grow up to then become not only productive citizens but 
moms and dads themselves and raise their own children--is something the 
Federal Government ought to be encouraging. We shouldn't be agnostic 
about something that is so fundamentally important to the well-being of 
this country and to our future. We should not stand idly by and see the 
constitution of one State then spread to another State and, indeed, 
then to the courts where the Federal Constitution is called into 
question that would radically redefine this basic social institution.
  While I know there are those who are hesitant to talk about this 
issue because, as I say, no one wants to be cast as intolerant of other 
relationships--indeed, I think you can say and recognize there are 
people in loving relationships outside of marriage. But when they want 
to say marriage is what we redefine it to be, and there is no 
difference between a man and a woman and a same-sex marriage, I think, 
first of all, that tends to trivialize what we all have come to 
recognize as an institution that is a basic social good in this 
country. But it also is game playing.
  There are others who say we want to have all the legal benefits of 
marriage,

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but maybe we won't call it marriage, which to me is game playing.
  I am a little skeptical of that, especially when, as a lawyer, I know 
if two people of the same sex want to make contractual or other 
arrangements between themselves so one can inherit from the other, so 
one can act on the other's behalf by use of a power of attorney, either 
to make medical decisions, if one is disabled, or financial decisions 
if the circumstances arise, there is virtually an unlimited opportunity 
for same-sex partners to order their relationship from a legal 
standpoint in a way that satisfies virtually all the reasons I have 
heard articulated for same-sex marriage.
  It is important we have a hearing. It is important for this body to 
defend, if necessary, its prerogative under the Defense of Marriage Act 
to do what we believe and I believe the overwhelming number of American 
people believe is in the best interest of families and children and not 
leave this to activist judges who consider themselves to be 
superlegislators, who consider their prerogative to take a social or 
political or some other agenda and essentially dictate that to the 
American people from the bench.
  We know Federal judges and many State judges serve for a lifetime. 
There is no way for the American people, short of impeachment, to 
remove a Federal judge or a judge who is appointed for a lifetime who 
acts in such a radical fashion, so inconsistent with our norms and 
traditions, with our traditional understanding of the separation of 
powers, And yet in a way that would so radically transform this 
fundamental social unit that is so important to who we are as people 
and as families, and one that is the best and most optimal arrangement 
found yet in the history of mankind to have and raise children so that 
they will be productive citizens.
  I have come to the same reluctant position as I know the President 
announced he has today and believe that indeed the Constitution will be 
amended. The question is whether we the people are going to amend it by 
using article V of the Constitution, which creates an admittedly 
difficult process but one which is important to make sure that it is 
not done flippantly, too fast or without adequate deliberation. It is 
time to consider whether we ought to invoke that provision the Framers 
provided in article V of the Constitution to say: Not so fast, judge. 
We the people ultimately have the power within our hands to decide how 
this institution will be defined and we think there is a positive 
social good to define marriage in traditional terms.
  So I believe it is important, as the President has concluded in his 
announcement today, that we consider a constitutional amendment.
  There are some who say our Constitution is a sacred document. Indeed, 
I think our Constitution is very important and even an inspired 
document, but I disagree with those who say the Constitution is 
sacrosanct to the extent that they say the Constitution should never be 
amended. Indeed, if the Founding Fathers believed the Constitution 
should never be amended because it was a sacred document, then they 
would not have provided a means within that document itself for 
deliberation, hearings, decisions, and ultimately a vote of this body 
and of the other body by two-thirds and then three-quarters of the 
States voting for ratification, which is the process by which that 
Constitution can be amended.
  In my lifetime, I never imagined I would be standing on the Senate 
floor having to say I believe in the traditional institution of 
marriage between a man and a woman. I just thought, of all the other 
issues we would be debating in this body, whether they are matters of 
war and peace, job creation, access to health care, education, all of 
the important issues that affect the people in this country, the last 
issue I ever thought we would have to address would be a redefinition 
of marriage, but I submit that is where we are.
  Reluctantly, as many of us come to this discussion--and I think if 
one looks at the polls we have all followed in the news media in the 
last few weeks since this issue has been splashed across our TV 
screens, our newspapers, the Internet, and elsewhere, one sees that the 
American people are getting the sense that something has gone terribly 
wrong, that somehow their values and their traditions are being 
disrespected in a way that needs correction.
  As more and more people find out about the way this came about, 
through a sort of--well, I would call it judicial lawlessness; in other 
words, judges who are not interpreting the law but who are taking it 
upon themselves to redefine what the Constitution means and indeed 
redefine this basic social unit in our civilization, I think they are 
going to be pretty upset and they are going to expect us to take up a 
discussion of this constitutional amendment in a reasonable, 
deliberate, civil sort of fashion.
  I hope we can rise to that challenge. Indeed, if one looks at the 
vote in the Defense of Marriage Act, one sees there is an overwhelming 
bipartisan group in this body and in the other body who believe that 
the institution of marriage is a positive social good and worthy of 
preservation. I hope we will not be afraid to talk about it in a frank 
and open way, to listen to the concerns of those who maybe are not yet 
convinced, to take those into account and then, as a Senate, we can 
discharge our responsibility under article V of the Constitution to 
begin the process of allowing the American people to vote on the 
definition of marriage.
  We know who is voting now and it is a handful of judges and municipal 
officials who are encouraging civil disobedience. They are issuing 
marriage licenses in violation of State law, for example, in California 
and elsewhere. Ultimately, if we are going to preserve something that I 
think is infinitely worthy of preservation--and that is government of 
the people, by the people and for the people--this is something we are 
going to have to do. This is a responsibility we are going to have to 
accept and we are going to have to risk the possibility that some may 
mischaracterize what we are trying to do as being disrespectful of 
other people. That is not what this is about.
  I would condemn rhetoric or language which would appear to be 
disrespectful of other people, but that does not mean at the same time 
that I do not believe the institution of marriage is worthy of 
protection.
  I look forward to the hearing we are going to have in the 
Constitution Subcommittee on March 3, I believe at 10 in the morning. I 
anticipate that perhaps later in the month, maybe the week after we 
come back from the March recess, we will have another hearing. Senator 
Hatch, the chairman of the Judiciary Committee, of course, reserves the 
right to make that final decision. At that time, we will begin to take 
up language, which we might then consider first in committee but then 
on this floor, that would preserve the definition of marriage for the 
American people and not allow ourselves to be dictated to by judges who 
are pursuing some other agenda, one that the overwhelming number of 
American people disagree with strenuously.
  I yield the floor and I suggest the absence of a quorum.
  The PRESIDING OFFICER. The clerk will call the roll.
  The assistant legislative clerk proceeded to call the roll.
  Mr. TALENT. Mr. President, I ask unanimous consent the order for the 
quorum call be rescinded.
  The PRESIDING OFFICER. Without objection, it is so ordered.

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