[Congressional Record (Bound Edition), Volume 152 (2006), Part 8]
[Senate]
[Pages 10265-10282]
[From the U.S. Government Publishing Office, www.gpo.gov]




            MARRIAGE PROTECTION AMENDMENT--MOTION TO PROCEED

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

       Motion to proceed to the consideration of S.J. Res. 1, 
     proposing an amendment to the Constitution of the United 
     States relating to marriage.

  The ACTING PRESIDENT pro tempore. Under the previous order, the time 
until 9:40 shall be equally divided between the two leaders or their 
designees.


                   Recognition of the Majority Leader

  The majority leader is recognized.


                                Schedule

  Mr. FRIST. Mr. President, this morning we will have a brief period 
for closing remarks prior to the 10 a.m. vote on the Marriage 
Protection Amendment. That vote will be on a vote for cloture on the 
motion to proceed to S.J. Res. 1.
  Following the 10 o'clock vote, the Senate will recess in order to 
attend a joint meeting with the House for the President of the Republic 
of Latvia, who will be addressing both Houses at 11 o'clock this 
morning. Senators should remain in the Chamber following the vote so we 
may leave at approximately 10:40 for that joint meeting.
  When we return at noon, we have set aside debate times on two issues. 
First, from 12 o'clock to 3 o'clock, we will be debating the motion to 
proceed to the repeal of the death tax. A cloture motion was filed on 
proceeding to the death tax repeal. That vote will occur tomorrow 
morning. We have also set aside debate from 3 o'clock to 6 o'clock on 
the motion to proceed to the Native Hawaiians measure. The cloture vote 
will occur on that motion to proceed during tomorrow's session, as 
well.
  I add that this week we have other matters to consider, including 
some nominations. We hope to reach agreements to consider Sue Schwab to 
be U.S. Trade Representative, the Assistant Secretary of Labor for Mine 
Safety and Health, and several available district judges who are on the 
Executive Calendar. We will be scheduling those for consideration 
through the remaining days this week.


                   Recognition of the Minority Leader

  The ACTING PRESIDENT pro tempore. The Democratic leader is 
recognized.


                                 Voting

  Mr. REID. Mr. President, my only response would be on this side of 
the aisle, we will be voting on the estate tax.
  The ACTING PRESIDENT pro tempore. The Senator from Wisconsin is 
recognized.
  Mr. FEINGOLD. Mr. President, we will shortly be voting on what will 
presumably be the 28th amendment to the U.S. Constitution. We all know 
the outcome of that vote. The amendment will fall well short of the 60 
votes required for cloture, let alone the 67 votes required to pass a 
constitutional amendment, so it will fail, as it did 2 years ago. I am 
pleased that the Senate will reject this amendment.
  I am heartened so many Senators have come to the Senate to speak out 
strongly against this misguided proposal, but I am saddened that once 
again the Senate has spent several days on such a divisive and unneeded 
proposal, a proposal that pits Americans against one another. I think 
it appeals to people's worst instincts and prejudices.
  The arguments made by supporters of the amendment simply do not hold 
up under scrutiny. Supporters argue that Federal courts are basically 
on the brink of recognizing same-sex marriage and that States may be 
forced to recognize same-sex marriage performed in other States. Of 
course, neither of these things have happened, and no one has explained 
why we should do a preemptive strike on the basic governing document of 
the country to address a hypothetical future court decision.
  Supporters talk about traditional marriage but in some ways have very 
little respect for the traditional role of the States in regulating 
marriage. If they did, they would not be trying to impose a restrictive 
Federal definition of marriage on all States for all time. The 
supporters argue that this amendment will not effect the ability of 
State legislatures to extend benefits to same-sex couples or enact 
civil unions, but as I tried to point out in some depth yesterday, even 
the legal experts who would support this constitutional amendment 
cannot even agree about its potential effect and scope. We are not 
talking about putting together a statute; we will put this into the 
Constitution.
  Supporters rail against activist judges. But if this vaguely worded 
amendment ever passes, it will result in substantial litigation. What 
are the legal incidents of marriage? Is a civil union a marriage in all 
but name and therefore subject to the amendment? Judges would have to 
answer these and other questions that the supporters of the amendment 
have so far failed to resolve. There is certainly a rich irony in that.
  We have heard moving speeches, and I do not doubt the sincerity of 
the speakers, about the central role and

[[Page 10266]]

volume of marriage in our society. What I still do not understand, and 
what the supporters of the amendment have failed to demonstrate, is why 
we should prevent States from deciding to open this institution to men 
and women who happen to be gay and lesbian all over the country.
  Married heterosexual couples are shaking their heads and wondering, 
how, exactly, the prospect of gay marriages threatens the health of 
their marriages.
  This amendment would make a minority of Americans permanent second-
class citizens of this country. It would prevent States, many of which 
are grappling with the definition of marriage, from deciding that gays 
and lesbians should be allowed to marry. It may even prevent States 
from offering certain benefits of marriage to same-sex couples through 
civil union or domestic partnership legislation. And it would write 
discrimination into a document that has served as a historic guarantee 
of individual freedom.
  Gay Americans are our neighbors, our friends, our family members, and 
our colleagues. Millions are loving parents in strong and healthy 
families. Let's not demonize them. Let's not play upon fears. Let's not 
use them as scapegoats for perceived social problems. Let's allow--in 
fact, let's encourage--States to extend rights and responsibilities to 
these decent, loving, law-abiding families. We can start today by 
rejecting this unnecessary, mean-spirited and poorly drafted 
constitutional amendment.
  I yield the floor and suggest the absence of a quorum.
  The ACTING PRESIDENT pro tempore. The clerk will call the roll.
  The bill clerk proceeded to call the roll.
  Mr. FEINGOLD. Mr. President, I ask unanimous consent that the order 
for the quorum call be rescinded.
  The ACTING PRESIDENT pro tempore. Without objection, it is so 
ordered.
  Mr. FEINGOLD. Mr. President, I ask the time during the quorum call be 
equally divided on both sides.
  The ACTING PRESIDENT pro tempore. Without objection, it is so 
ordered.
  Mr. FEINGOLD. I suggest the absence of a quorum.
  The ACTING PRESIDENT pro tempore. The clerk will call the roll.
  The bill clerk proceeded to call the roll.
  Mr. BROWNBACK. Mr. President, I ask unanimous consent that the order 
for the quorum call be rescinded.
  The PRESIDING OFFICER (Mr. Allard). Without objection, it is so 
ordered.
  Mr. BROWNBACK. How much time is remaining on our side of the aisle?
  The PRESIDING OFFICER. There is 14\1/2\ minutes.
  Mr. BROWNBACK. I ask when 7\1/2\ minutes have been used, I be 
informed.
  The PRESIDING OFFICER. The Chair will inform the Senator.
  Mr. BROWNBACK. Mr. President, if Members of the Senate vote as their 
States have voted on this amendment, the vote today will be 90 to 10 in 
favor of a constitutional amendment. Forty-five States have defined 
marriage as the union of a man and a woman.
  I want to show my colleagues an outdated map. It shows the number of 
States that have weighed in on the topic of marriage. Yesterday, 
Alabama voted by 81 percent to define marriage as the union of a man 
and a woman. The dark green States are those that have already passed; 
light green are those where it is pending, and only five States have 
not defined marriage as a union between a man and a woman. So if 
Senators would represent their States, this amendment would pass 90 to 
10. It would pass with the definition of marriage as the union of a man 
and a woman. And if anybody wants to define it otherwise, it will have 
to go through the State legislature, not the courts.
  So there is nothing to oppose in this amendment. If your State wanted 
to go at it by a different route, it says it has to go through the 
legislature. It can't be forced by the court. What is wrong with that?
  I find it a sad prospect that we might not be able to pass this 90 to 
10. Marriage is a foundational institution. It is under attack by the 
courts. It needs to be defended in this way by defining it as the union 
of a man and a woman as 45 of our 50 States have done. If it is going 
to be defined otherwise, it must be done by the legislatures and not by 
the courts.
  This morning we are going to vote on a constitutional amendment to 
define marriage as the union of a man and a woman. This is about who is 
going to determine the definition, whether it is the courts or the 
legislative bodies. The amendment is about how we are going to raise 
the next generation. How are they going to be raised? It is a 
fundamental issue for our families and for our future. It is an issue 
for the people. It is not an issue that the courts should resolve. 
Those of us who support this amendment are doing so in an effort to let 
the people decide.
  There has been a lot of eloquent debate about this constitutional 
amendment. I have been on the Senate floor most of the time. I have 
heard very little debate against the amendment. I have heard a lot of 
people complaining that we ought to take up something else, that this 
is not so important. I look at it and say, we have this many States 
that have deemed it important enough that they would put it on their 
ballots. This is important. We have had basically one, two, maybe three 
speakers say they really question the amendment, but most of them say 
we shouldn't spend our time on this amendment. We shouldn't spend our 
time on the estate tax. They don't mention the native Hawaiian bill 
that is coming up, or suggest that we should not spend our time on 
that.
  We are going to have this vote. People are going to be responsible 
for this vote. We are making progress in America on defining marriage 
as the union of a man and a woman, and we will not stop until it is 
defined and protected as the union of a man and a woman. We have far 
more States now that have voted on this issue than the last time we 
voted on it. We now have far more court challenges taking place to this 
fundamental definition of how we look at the union of marriage.
  Marriage is about our future. I continue to be struck by the 
opponents of this amendment who say it is an effort to promote 
discrimination. The amendment is about promoting our future, our 
families, how we raise that next generation, and about allowing a 
definition of a fundamental institution to be made by the people rather 
than by the courts.
  I have shown a number of charts demonstrating that the best situation 
for our children to be raised is in a home with a mother and father. 
Children need these two parents. It is not that you can't raise good 
children in a single-parent household; you can. Many struggle 
heroically to do so. Yet we know from all the data that the best place 
is with a mother and father. Children do best academically and 
socially, and they are more likely to be raised in financially stable 
homes when a mother and father are both present.
  More importantly, they have the security of knowing there are two 
people in their lives who provide security and stability, two people 
who provide something, each differently, but that is very important.
  These two people become one. They are united. They become one bonded 
together. This past weekend, my mother-in-law and father-in-law 
celebrated 56 years of marriage. While often they may disagree with one 
another--sometimes pretty heatedly, sometimes one could call it almost 
barking at each other--they are inseparable. They are one. It is a 
beautiful thing to see. It is the way that we should uphold these 
institutions. Their children and their grandchildren and great-
grandchildren get to see these two people, two old trees leaning 
against each other, holding each other up, physical bodies not anything 
near what they used to be, but supporting and helping and setting a 
foundation for all future generations to look at and say: That is the 
way it ought to be done.
  Life hasn't always been easy for them. There have been difficulties 
through time. They have had some hardships, working together. My 
father-in-law has done very well, served

[[Page 10267]]

in Korea, during which time they were separated by many miles.
  My parents have been married over 50 years. You look at them and say: 
That is the way it should be, where two become one. Out of that union 
comes more people, more children, raised with a solid set of 
foundational values that you hope can be good citizens. We are all 
going to have difficulties and problems, but isn't that something that 
we can do and we should do for the next generation?
  We have an important issue in front of us, the definition of 
marriage. We have a country that is watching and that knows what they 
believe marriage should be defined as, the union of a man and a woman, 
as 45 States have defined it. The courts are moving otherwise. We say 
let the legislatures decide, and that it is an important issue, 
meritorious of our vote.
  To those who oppose this amendment, I think they will have to explain 
to a lot of people why they oppose marriage as the union of a man and a 
woman and why they don't think the State legislatures should be the 
ones responsible for defining this but, rather, that this should be 
defined by the courts. I don't think their position is across America.
  This is important. I hope my colleagues support this constitutional 
amendment.
  I yield the floor and suggest the absence of a quorum.
  The PRESIDING OFFICER. The clerk will call the roll.
  The bill clerk proceeded to call the roll.
  Mr. ALLARD. Mr. President, I ask unanimous consent that the order for 
the quorum call be rescinded.
  The ACTING PRESIDENT pro tempore. Without objection, it is so 
ordered.
  Mr. ALLARD. Mr. President, I begin by thanking the majority leader 
and the 32 cosponsors of S.J. Res. 1, the Marriage Protection 
Amendment. I thank the Senator from Kansas for his leadership, courage, 
and for standing in support with me of marriage.
  We as Senators are called to duty to debate this issue today out of 
respect for the democratic process. The voice of the people has been 
heard loud and clear. Marriage is the union of a man and a woman.
  It has been heard in the 20 States with constitutional amendments 
passed by an average of over 70 percent of voters. It has been heard in 
the 26 States with statutes protecting traditional marriage. It has 
been heard in 45 States and in this Congress.
  Unfortunately, dissatisfied with the outcome of the democratic 
process, a handful of activists have launched a carefully coordinated 
campaign to circumvent the democratic process and redefine marriage 
through the courts.
  As a result, I introduced S.J. Res. 1, an amendment to the 
Constitution, that simply defines marriage as a union of a man and a 
woman, while leaving all other issues of civil unions or domestic 
partnerships to the States. I am pleased the issue has this week been 
debated in a democratically elected and deliberative body--where it 
belongs.
  Throughout the course of the past 2 days, I have heard countless 
arguments in favor of marriage from both sides of the aisle. 
Surprisingly, many of the same people making those arguments will not 
vote for our amendment to protect marriage.
  Equally as surprising, notwithstanding their opposition, I heard few 
arguments opposing my amendment on the merits. Instead, most of those 
opposed to the amendment shifted the debate to issues other than the 
pending business. I suspect these shifts were meant to divert attention 
away from their intent to vote differently than an average of 70 
percent of their constituents do when they vote on the issue of same-
sex marriage at home.
  While other issues are without a doubt very important, the Senate has 
and continues to devote considerable time and will likely devote even 
more time to debate on these important issues this year. With the 
overwhelming support that was voiced on this floor for the institution 
of marriage, one would think that addressing the nationwide attack on 
marriage that is underway would warrant at least 1 full day of debate 
on the issue.
  The one tack taken by those opposed to the amendment most closely 
resembling an argument on the merits came in the form of States rights. 
While well meaning, the argument is unfounded.
  First, my amendment actually protects States rights. Same-sex 
advocates have, through the courts, systematically and successfully 
trampled on laws democratically enacted in the States. My amendment 
takes the issue out of the hands of a handful of activist judges and 
puts it squarely back in the hands of the States.
  Secondly, the process to amend the Constitution is the most 
democratic, federalist process in all our government. It is neither an 
exclusively Federal nor an exclusively State action. It is the shared 
responsibility of both. Once passed by the Congress, legislatures in 
all 50 States will have the opportunity to debate and decide this issue 
for themselves.
  Finally, under my amendment, States remain free to address the issue 
of civil unions and domestic partnerships. Citizens acting through 
their State legislatures can bestow whatever benefits to same-sex 
couples they choose. The real danger to States rights would be to do 
nothing and to acquiesce to the recognition of unenumerated 
constitutional rights in which the States have had no participation.
  The truth is, the Constitution will be amended whether we pass this 
bill or not. The only question is whether it will be amended through 
the amendment process or by unaccountable activist judges. If we fail 
to redefine marriage, the courts will not hesitate to do it for us.
  I, for one, believe the institution of marriage and the principles of 
democracy are too precious to surrender to the whims of a handful of 
unelected activist judges. I urge my colleagues to join me in my stand 
for democracy and marriage by voting yes on S.J. Res. 1, the Marriage 
Protection Amendment.
  I yield the floor.
  The ACTING PRESIDENT pro tempore. The Senator from Illinois.
  Mr. DURBIN. Mr. President, one of the first things a Member of the 
Senate should learn is humility, humility when it comes to some of the 
documents that guide our Nation. We certainly understand the 
Constitution we are sworn to uphold and defend is a treasured document 
which has guided us for over two centuries. I, for one, come to the 
subject of amending this Constitution with real humility. I think it is 
bold of some of my colleagues to believe that their handiwork, their 
words, could stand the test of time, could be measured against the work 
product of Thomas Jefferson and the greats in American history.
  This matter before us today is an attempt by some of my colleagues to 
amend the Constitution, to change the document which has guided America 
for so long. I have seen a lot of these amendments come and go as a 
member of the Judiciary Committee. Some of them, frankly, couldn't even 
make it through the committee, let alone on the Senate floor or be sent 
to legislatures for approval.
  But still Members come forward with a variety of ideas. Today, we 
consider the so-called Marriage Protection Amendment. My friend, my 
colleague from Colorado, Senator Allard, the lead sponsor of it, says 
this amendment will not infringe on the rights of States to determine 
the status of different relationships. Yet let me read the language of 
his amendment:

       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.

  So if my State of Illinois decides to establish a domestic 
partnership law and say that two people of the same gender can live 
together and share health insurance and can be in a relationship where 
there would be a guarantee that they would have access to visit one 
another in times of hospitalization and sickness, where property rights 
could be established, is that a legal incident of married life? Most 
people would say yes. Clearly, this language says it would be 
prohibited. So

[[Page 10268]]

what we have here goes far beyond the concept of marriage. We have to 
take care not to put language in this Constitution that will come back 
to haunt us.
  I step back, too, and look at this debate and wonder, why are we here 
on the floor of the Senate doing this? Why are we debating this issue 
above all others? Why are we taking virtually a week of Senate business 
time to debate the issue of gay marriage? I think it goes back to a 
statement made by President Bush a couple weeks ago on the issue of 
immigration. This is what he said:

       We cannot build a unified country by inciting people to 
     anger, or playing on anyone's fears, or exploiting [an] issue 
     . . . for political gain.

  He was referring to the issue of immigration, but the standard is a 
good one. We have a responsibility to unite America and not divide it.
  Mr. President, I wish you could hear the telephone calls to my 
office. The people calling in support of this amendment--many of them--
are very courteous and ask me to vote for the amendment. But, sadly, so 
many of them call spewing their hatred and bigotry of people of 
different sexual orientation. You think to yourself, is this good for 
America? Is it good for us to have this sort of angry display brought 
out by our actions on the floor of the Senate at a time when we know 
this constitutional amendment will not be enacted by the Senate? Nobody 
believes it will receive the 67 votes that are necessary for final 
passage, and few believe it will even come close to the 60 votes 
necessary on a cloture motion. Yet we come today, as we have times 
before, to bring up this issue.
  This debate is not about the preservation of marriage. This debate is 
about the preservation of a majority. The Republican majority believes 
that if they can bring these issues which fire up their political base 
to the floor, they will have better luck in the November election. So 
at the risk of dividing America, at the risk of putting language in the 
Constitution that could not stand the test of time, they will take the 
time of the Senate and engage us in this debate. That is unfortunate 
when you think of so many other things we should be dealing with.
  Would this not have been a great week to deal with energy policy and 
reducing our dependence on foreign oil, to make America less dependent 
upon the Middle East and the foreign powers that push us around because 
we need their oil to propel our economy? Would this not have been a 
perfect week to debate affordable and accessible health care for every 
single American? Would this not have been a perfect week for us to 
decide what in the 21st century we need to do to make sure our schools 
prepare our citizens to continue to lead in this world? Would this not 
have been an important week for us to come together and have a 
meaningful debate on the war in Iraq which has claimed 2,476 of our 
best and bravest young men and women?
  No. The Republican majority said no. They said this is a perfect week 
for us to come together and discuss a flawed amendment to the 
Constitution, for us to come together on an issue that, sadly, divides 
us rather than unites us as Americans, and to take that time off the 
Senate calendar. I think it is very clear that this is not a voter 
priority. It is not an American priority. When the American people were 
asked in a Gallup Poll in April, ``What do you think is the most 
important problem facing this country today,'' this issue came in at 
No. 33. But for Senator Frist and the Republican majority, it is No. 1 
this week. I think most people realize there is political motivation 
here and that is what it is all about.
  We should also consider the reality that this is clearly a State 
issue. States have always established the standards for marriage. That 
has been the tradition in American law, a tradition which would be 
upset and voided by this amendment. Each State may have slightly 
different standards.
  A few years ago, under a Democratic President, Congress passed the 
Defense of Marriage Act. The Defense of Marriage Act said that no State 
would be compelled to recognize the standards of another State when it 
came to same-sex marriage. Now, that means in the State of 
Massachusetts, where gay marriage is allowed, they can make that 
decision. The people in that State can validate that decision and 
courts can approve that decision, but they cannot impose that decision 
on Kansas, Colorado, Illinois, or Alabama.
  The Defense of Marriage Act has never been successfully challenged, 
never been overturned, and it is the law of the land. But it is not 
good enough for those who propose this amendment. They want more. I 
believe that is unfortunate. It is unfortunate when we consider that we 
are taking the precious time of the Senate on an issue which we should 
not be considering at this moment. The Republican leadership ought to 
listen to First Lady Laura Bush. She was asked about this amendment 
last month on ``FOX News Sunday''--the fair and balanced FOX, remember 
that? This is what she said:

       I don't think it should be used as a campaign tool, 
     obviously.

  That sentiment was echoed last month by the daughter of Vice 
President Cheney. This is what she said:

       I certainly don't know what conversations have gone on 
     between Karl [Rove] and anybody up on the Hill, but . . . 
     this amendment . . . is writing discrimination into the 
     Constitution and . . . it is fundamentally wrong.

  Now consider the wise words of another former Senator, a loyal 
Republican, John Danforth of Missouri--a conservative man, but he 
opposes this amendment. He said this in a recent speech:

       Some historian should really look at all of the proposals 
     that have been put forth throughout the history of our 
     country for possible constitutional amendments. Maybe at some 
     point in time there was one that was sillier than this one, 
     but I don't know of one.

  In fact, over 11,000 constitutional amendments have been proposed by 
Members of Congress throughout our history. Only 17 of them actually 
passed into the Bill of Rights. Why? Because amending our Constitution 
should take place under only the most extraordinary circumstances. We 
should amend it only when it is essential to protect the rights and 
liberties of the American people.
  I am joined in this belief not only by Democrats but by Senator 
Danforth, the Vice President's daughter, the First Lady, and by many 
true conservatives.
  Listen to what Steve Chapman, a libertarian writer from the Chicago 
Tribune, wrote:

       If there is anything American conservatives should revere, 
     it's the U.S. Constitution, a timeless work of political 
     genius. Having provided the foundation for one of the freest 
     societies and most durable democracies on Earth, it shouldn't 
     be altered lightly or often.

  As United States Senators, we take an oath. We solemnly swear to 
support and defend this Constitution. I believe part of that oath 
requires us to take care when it comes to changing the Constitution.
  I have listened to some of the debate on the floor. The Presiding 
Officer from Kansas spoke yesterday about marriage in America. I think 
it is a legitimate concern. America's strength is its families. The 
family of Americans has been the model--the goal, really--and the 
leadership of our Nation. But to argue for this amendment, suggesting 
that the increase in births to unmarried women is somehow linked to gay 
marriage--I don't understand that connection in any way whatsoever. To 
suggest that lower income level people are less likely to marry and 
that has something to do with gay marriage--I don't understand that 
connection, either.
  If we are truly going to strengthen the American family, would we not 
want to increase the minimum wage in America, which hasn't been 
increased by this Republican Congress in 9 years? Would we not want to 
provide basic health insurance to families so they can have peace of 
mind when their children get sick? Would that not strengthen families? 
Would we not want to make sure we have good-paying jobs in America that 
create opportunities so people can look ahead with optimism? Would that 
not strengthen families and our country? Instead, we have the gay 
marriage amendment.

[[Page 10269]]

  In the State of Kansas, the former Republican State chairman has 
decided to become a Democrat. He said he was tired of the culture wars 
the Republican Party tended to always want to fight. We saw it here in 
the Congress last year when the House Republicans were in trouble and 
they brought up the tragic case of Terri Schiavo--an invasion of the 
Federal Government into the most personal, private decision a family 
could face. Now, again, facing political difficulty, they bring up this 
Federal marriage amendment. It will not pass today. We must set it 
behind us and move forward on the important agenda the American people 
sent us to Washington to work on. Let us do it in the spirit that 
President Bush reminded us of a few weeks ago--building a unified 
country, not inciting people to anger or playing on anyone's fears or 
exploiting an issue for political gain.
  I hope my colleagues will join me in opposing amending the 
Constitution, despite the best efforts of those who bring this issue 
before us today in S.J. Res. 1. This does not merit inclusion in the 
most treasured and important document that guides America and its 
democracy.
  Mr. LEVIN. Mr. President, the Senate is once again debating an 
amendment which proposes to establish a Federal definition of marriage 
in the U.S. Constitution. Only 2 years ago, the Senate rejected a 
similar effort.
  One stated reason for considering this amendment is to protect States 
from having to honor the decisions of other States regarding marriage 
laws. This is unnecessary because 10 years ago this body overwhelmingly 
passed, and President Clinton signed into law, the Defense of Marriage 
Act, DOMA, which I supported, which states that ``No State . . . shall 
be required to give effect to any public act, record, or judicial 
proceeding of any other State . . . respecting a relationship between 
persons of the same sex that is treated as a marriage under the laws of 
such other State . . . or a right or claim arising from such 
relationship.'' The Defense of Marriage Act has clearly already defined 
``marriage'' as ``only a legal union between one man and one woman as 
husband and wife.''
  Proponents of this amendment argue that it is only a matter of time 
before the Federal courts become involved with marriage law, and they 
raise the fear that the Defense of Marriage Act could be struck down by 
so-called ``activist'' judges and courts. However, this simply has not 
been the case. This same argument was made in the Senate in 2004, but 
the Defense of Marriage Act still stands and remains law.
  Since 2004, DOMA has been upheld three times in Federal courts. In 
2004, a Washington Federal judge upheld DOMA in a case where a couple 
had obtained a Canadian marriage license. In 2005, a Florida Federal 
district court upheld DOMA as constitutional in a case where a couple 
married in Massachusetts sought recognition of their marriage in 
Florida. And only last month, the Ninth Circuit Court of Appeals upheld 
a lower court decision dismissing a challenge to DOMA in California. 
There is no particular reason to believe that another pending challenge 
currently in district court or future challenges to DOMA will be 
successful.
  I believe that the laws regarding marriage are matters to be dealt 
with by the States. My State of Michigan, for example, enacted a 
constitutional amendment in 2004 which provides that marriages and 
other similar unions shall only be recognized as being between one man 
and one woman. DOMA continues to protect each State's right to define 
marriage.
  The language of the proposed constitutional amendment contains a 
number of other problems. The amendment reads ``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.''
  The principal sponsor of this amendment, Senator Allard, states that 
this amendment will give ``State legislatures the freedom to address 
civil unions however they see fit,'' even though this is a power the 
States already possess. In fact, the very language of this 
constitutional amendment would make it unconstitutional for the States 
to create civil unions or domestic partnerships in their constitutions 
with any of the same legal benefits currently afforded to marriage.
  Our Constitution should not be altered lightly. It has been amended 
only 17 times since the enactment of the Bill of Rights over 200 years 
ago. As former Republican Congressman Bob Barr, the author of the 
Defense of Marriage Act, stated in testimony before the House Judiciary 
Committee 2 years ago, ``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.''
  The Constitution has been amended in the past to broaden and affirm 
the rights of Americans and never to narrow the rights of a group of 
Americans. Amendments to our Constitution have freed enslaved Americans 
and given women the right to vote. And it is the first 10 amendments, 
our Bill of Rights, which protect our most cherished freedoms like the 
freedom of speech.
  For all these reasons, I will oppose the adoption of this 
constitutional amendment.
  Mr. KERRY. Mr. President, for the past 3 days, the Senate has been 
bogged down debating a constitutional amendment on gay marriage.
  You might ask yourself, why now? What's the constitutional crisis 
that needed to be addressed this week? Did the Republican leader bring 
this legislation to the floor in response to a marriage crisis in the 
United States?
  States, which have had the responsibility of setting marriage laws 
for two centuries, have taken action on gay marriage as they've seen 
fit. No crisis there.
  No, this amendment is front and center in the Senate in response to a 
political crisis: a crisis in the Republican Party.
  What is most outrageous to Americans is the cost of this debate in 
opportunities lost to address very clear and present crises in our 
country. Debating the constitutional amendment to ban gay marriage 
displaces Americans' real priorities--dealing with gas prices and our 
dangerous dependence on foreign oil, providing health care to the 45 
million uninsured, lowering health care costs, advancing stem cell 
research, securing our ports, bringing our troops home from Iraq, and 
ensuring our returning veterans have the support they need.
  Why the sudden call from so-called conservatives to take the power to 
regulate marriage away from the States? The Federal Government does not 
even have the jurisdiction to regulate marriage. Since this country was 
founded, States have had the authority to regulate marriage and other 
family-related matters. Currently 49 States limit marriage licenses to 
heterosexual couples, and 18 States have adopted State constitutional 
amendments banning same-sex marriages. For over 200 years, this balance 
of power has worked.
  The Federal Government is not in the business of issuing marriage 
licenses or dissolving marriages. Congress does not dictate the age at 
which people can get married or the grounds for seeking an annulment or 
divorce. I do not believe the Federal Government even has the power to 
legislate such things.
  Should this amendment pass, it would be the first time that the 
Constitution is amended to deny rights to a particular group of 
Americans, singling them out for discrimination. The discrimination 
would not be limited to actual marriages either. The wording of the 
amendment could limit rights afforded under civil unions. When similar 
State amendments were adopted in Ohio, Michigan, and Utah, domestic 
violence laws and health care plans for couples--gay and straight--were 
taken away.
  In the past, we have amended our Constitution to protect groups of 
citizens suffering from discrimination, to ensure that everyone enjoys 
the same

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basic civil rights. I strongly oppose any effort by the Senate to 
change the course of history in such a dramatic way, and I particularly 
resent that this is being done for raw political purposes.
  In 2004 when this amendment was brought up, only 48 Senators 
supported it. The outcome of today's vote is no surprise. Instead of 
spending 3 days debating a doomed constitutional amendment, we should 
have spent these 3 days guaranteeing all American children health care, 
addressing record-breaking gas prices, stimulating the economy after a 
month of sluggish job growth, or working out a real plan for dealing 
with the mess in Iraq. We should have been doing the work of the 
American people, but instead we debated a constitutional amendment that 
never had any hope of passing.
  Mr. President, I hope that in the future the Senate can get its 
priorities straight, and I am confident that if it doesn't Americans 
will find their own way of holding the system accountable.
  Mr. JEFFORDS. Mr. President, I am very troubled by the Senate 
leadership's decision, with limited days remaining in the session, to 
spend valuable time trying to amend the Constitution to define 
marriage. This issue should not be at the top of our priority list.
  Unfortunately, it is a recurring theme here in the Senate during 
election years, to concentrate on issues that fuel partisan politics, 
rather than addressing our country's important needs. For the reasons I 
will lay out, I will once again oppose a Federal marriage amendment.
  The Federal marriage amendment comes up at a time when many other 
critical issues face our Nation. We have soldiers in Iraq and 
Afghanistan fighting wars with no end in sight. Veterans are still not 
granted adequate medical support, and now have also been exposed to the 
threat of identity theft. Millions of Americans still have no health 
insurance, and gas prices are too high.
  There are many pieces of pending legislation the Senate should be 
taking up other than the Federal marriage amendment, such as those 
addressing increased support for education, Head Start reauthorization, 
global warming, and a rapidly increasing deficit.
  Some of my colleagues insist that the institution of marriage is 
under attack by the courts, and, therefore, passage of this 
constitutional amendment is critical. This argument is questionable at 
best.
  In 1996, the Defense of Marriage Act was passed by the Congress and 
signed into law. This law gives each State the power to determine its 
own marriage laws and not be forced to accept another State's 
definition of marriage. I voted in favor of the Defense of Marriage Act 
because I believe in the importance of allowing States, including 
Vermont, the right to define marriage in a manner they deem 
appropriate.
  As of this date, no court has overruled the Defense of Marriage Act. 
In fact, the court that many of my colleagues consider to be the most 
liberal, the Ninth Circuit, has upheld the Defense of Marriage Act. The 
proponents of a Federal marriage amendment also point to a case in 
Nebraska, Equal Protection Inc. v. Brunning, to prove their point. But 
that case only addressed the right of people to petition the 
government, it did not rule on the definition of marriage. Because the 
Defense of Marriage Act remains the law of the land, each State retains 
the right to define marriage as it sees fit, rather than have a 
definition forced upon it.
  I am proud that in my State of Vermont, the legislature, in a 
bipartisan manner, was able to pass a law that affords same-sex couples 
the same legal rights as other married couples. Vermont's civil union 
legislation proved to the Nation that the rights of marriage do not 
have to be an exclusive privilege.
  The Congress should be focusing on unity, not on exclusion and 
discrimination. I am proud that during my 32 years in Congress I have 
been a supporter of inclusive, unifying pieces of legislation. I have 
been a leading advocate of the Employment Non-Discrimination Act, the 
Permanent Partners Act, and of expanding the definition of hate crimes 
to include crimes motivated by gender and sexuality.
  Here in the Senate, the leadership continues to insist on 
prioritizing a Federal marriage amendment. They insist on spending 
floor time on this amendment when other, more pressing issues remain in 
the shadows.
  What message is the Senate sending to the American people? That real 
and pertinent issues can be swept aside so we can discuss a way to 
further exclude our fellow Americans? That we would rather spend time 
on a partisan fight than expanding our health care programs or 
increasing funding for education?
  This is not a message I can support. We must change our focus from 
symbolic theoretical debates to concrete policy improvements that yield 
positive results for all Americans. I will vote against a Federal 
marriage amendment, and hope this issue will be laid to rest so the 
Senate can begin addressing the needs of the American people.
  Mr. BURNS. Mr. President, I am generally hesitant to amend the 
Constitution; there are few things as permanent as a constitutional 
amendment, and it is something that clearly should not be done lightly. 
However, when activist judges repeatedly take steps to overrule the 
clear voice of a majority of the people, we are left with very few 
options. As we have seen over the past several years, Federal and State 
judges have time and time again struck down traditional marriage 
protections laws--laws overwhelmingly approved by voter ballot 
initiatives. This is simply unacceptable, and therefore I will vote in 
favor of the Marriage Protection Amendment in order to ensure that 
traditional marriage laws approved by the voters in a majority of the 
States are protected.
  In my State of Montana, the people have overwhelmingly spoken on this 
issue on more than one occasion. In 1997, the Montana Legislature 
passed a State law defining marriage as between a man and a woman. Then 
in 2004, the people of Montana approved a ballot initiative by 67 
percent which amended the Montana Constitution to state: ``Only a 
marriage between one man and one woman shall be valid or recognized as 
a marriage in this State.'' Nationally, 19 States have adopted similar 
State constitutional amendments, and 26 more have statutes designed to 
protect traditional marriage.
  Unfortunately, the overwhelming consensus of the people is not good 
enough for some. As we have seen over the past several years, a handful 
of activist judges have taken it upon themselves to decide what should 
constitute marriage. By now, we are all well aware of the actions taken 
by the judges of the Supreme Judicial Court of Massachusetts. In that 
State, the court essentially mandated same-sex marriage. More recently, 
a Federal district court invalidated a Nebraska constitutional 
amendment protecting traditional marriage that had earlier been adopted 
with over 70 percent approval by Nebraska voters. As we debate this 
amendment, legal challenges are currently being brought against 
democratically approved traditional marriage laws in nine States. I 
fear it is only a matter of time before similar challenges are brought 
against the marriage protections approved by the voters of Montana.
  Personally, I have always believed that marriage is between one man 
and one woman. However, the ultimate decision in an issue as important 
as what constitutes marriage must fully reflect the desire of the 
people, not just those of us in Washington and certainly not that of a 
handful of judges. Therefore, the solution is clear: we must send the 
States a constitutional amendment that protects traditional marriage 
laws, protects the will of the people, and prevents judicial activism. 
No other process is guaranteed to prevent the redefinition of marriage.
  Mr. OBAMA. Mr. President, today, we take up the valuable time of the 
Senate with a proposed amendment to our Constitution that has 
absolutely no chance of passing.
  We do this, allegedly, in an attempt to uphold the institution of 
marriage in this country. We do this despite the

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fact that for over 200 years, Americans have been defining and 
defending marriage on the State and local level without any help from 
the U.S. Constitution at all.
  And yet, we are here anyway because it is an election year--because 
the party in power has decided that the best way to get voters to the 
polls is not by talking about Iraq or health care or energy or 
education but about a constitutional ban on same-sex marriage that they 
have no chance of passing.
  Now, I realize that for some Americans, this is an important issue. 
And I should say that, personally, I do believe that marriage is 
between a man and a woman.
  But let's be honest. That is not what this debate is about. Not at 
this time.
  This debate is an attempt to break a consensus that is quietly being 
forged in this country. It is a consensus between Democrats and 
Republicans, liberals and conservatives, red States and blue States, 
that it is time for new leadership in this country--leadership that 
will stop dividing us, stop disappointing us, and start addressing the 
problems facing most Americans.
  It is a consensus between a majority of Americans who say: You know 
what, maybe some of us are comfortable with gay marriage right now and 
some of us are not. But most of us do believe that gay couples should 
be able to visit each other in the hospital and share health care 
benefits; most of us do believe that they should be treated with 
dignity and have their privacy respected by the federal government.
  We all know that if this amendment were to pass, it would close the 
door on much of this--because we know that when similar amendments 
passed in places such as Ohio and Michigan and Utah, domestic 
partnership benefits were taken away from gay couples.
  This is not what the majority of the American people want. And this 
is not about trying to build consensus in this country; it is not about 
trying to bring people together.
  This is about winning an election. That is why the issue was last 
raised in July of 2004, and that is why we haven't heard about it again 
until now. And while this is supposedly a measure that the other party 
raised to appeal to some of its core supporters, I don't know how happy 
I would be if my party only talked about an issue I cared about right 
around election time--especially if they knew it had no chance of 
passing.
  I agree with most Americans, with Democrats and Republicans, with 
Vice President Cheney, with over 2,000 religious leaders of all 
different beliefs, that decisions about marriage, as they always have, 
should be left to the States.
  Today, we should take this amendment only for what it is--a political 
ploy designed to rally a few supporters and draw the country's 
attention away from this leadership's past failures and America's 
future challenges.
  There is plenty of work to be done in this country. There are 
millions without health care and skyrocketing gas prices and children 
in crumbling schools and thousands of young Americans risking their 
lives in Iraq.
  So don't tell me that this is the best use of our time. Don't tell me 
that this is what people want to see talked about on TV and in the 
newspapers all day. We wonder why the American people have such a low 
opinion of Washington these days. This is why.
  We are better than this, and we certainly owe the American people 
more than this. I know that this amendment will fail, and when it does, 
I hope we can start discussing issues and offering proposals that will 
actually improve the lives of most Americans.
  Ms. COLLINS. Mr. President, I rise to speak on S.J. Res. 1, the 
Marriage Protection Amendment to the Constitution. Let me begin my 
remarks by stating my position on the issues raised by this amendment.
  First, it is my strong personal belief that marriage is between a man 
and a woman. Second, principles of federalism dictate that the 
responsibility to define marriage belongs to the States. Third, the 
proper role of the Federal Government is to ensure that each State can 
exercise that right and responsibility by preventing, as the Defense of 
Marriage Act does, one State from imposing its view on others.
  The constitutional amendment under consideration would potentially 
affect two types of relationships that are fundamental to our society. 
The first is the union between a man and a woman. The second is the 
compact between the States and the Federal Government. In our zeal to 
protect the former, we must not do unnecessary harm to the latter, as 
it is the bedrock principle of our country's highly successful Federal 
system.
  When the Senate considered this amendment in July 2004, the 
Massachusetts Supreme Court had only recently issued its 4-to-3 
decision in the Goodridge case. I urged that we should not overreact to 
the single decision of a State court and rush to amend the Constitution 
in such a way as to strip away from our States a power they have 
exercised, wisely for the most part, for more than 200 years. I also 
opposed efforts to amend the Constitution without evidence suggesting 
that States could not be trusted to make decisions in this area for 
themselves.
  During the period since our last debate, many States have taken steps 
to define marriage within their borders. Currently, 45 States have 
enacted laws or constitutional amendments protecting marriage. Nineteen 
States have State constitutional amendments limiting marriage to a man 
and a woman, with 15 States passing State constitutional amendments 
since our last debate. Twenty-six other States, including Maine, have 
statutes limiting marriage in some manner. Maine law explicitly states 
that ``[p]ersons of the same sex may not contract marriage,'' and 
further provides that Maine will not recognize marriages performed in 
other jurisdictions that would violate the legal requirements in Maine. 
Thus, even if lawfully performed in another State, a same-sex marriage 
will not be valid in Maine.
  Voters in at least seven States will consider State constitutional 
amendments in 2006 and another four State legislatures are considering 
sending constitutional amendments to voters in 2006 or 2008. And it is 
still the case, as it was 2 years ago, that no State law has been 
enacted to allow same-sex couples to marry. Nor has a popular 
referendum to that effect passed in any State.
  I respect the right of the people of Maine and the citizens of other 
States to define marriage within their boundaries. Were I a member of 
the Maine Legislature, I would vote in favor of a law limiting marriage 
to the union of a man and a woman.
  This does not mean that Congress can play no role in this area. To 
the contrary, Congress has two very important roles. The first is to 
protect the right of each State to define marriage within its own 
borders, and the second is to define marriage for Federal purposes.
  To its credit, Congress did both of these when it enacted the Defense 
of Marriage Act, or DOMA, in 1996. Signed into law by President 
Clinton, DOMA enjoyed broad, bipartisan support in both Chambers of 
Congress, passing by a margin of 85 to 14 in the Senate and 342 to 67 
in the House. The statute grants individual States autonomy in deciding 
how to recognize marriages and other unions within their borders, and 
ensures that no State can compel another to recognize marriages of 
same-sex couples. Of equal importance, DOMA defines marriage for 
Federal purposes as ``the legal union between one man and one woman as 
husband and wife.'' I strongly endorse both of the principles codified 
by DOMA.
  Even though DOMA has not been successfully challenged during the 
nearly 10 years since its enactment, many supporters of the marriage 
amendment point to the Supreme Court's decision in Lawrence v. Texas as 
presaging DOMA's ultimate demise on constitutional grounds. They argue 
that DOMA's vulnerability necessitates approving the amendment under 
consideration.
  I reject that argument. The conclusion that DOMA is inevitably 
destined to die a constitutional death is inconsistent with language in 
the Lawrence

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decision. In striking down a Texas statute criminalizing certain 
private sexual acts between consenting adult homosexuals, the majority 
opinion written by Justice Kennedy was careful to note that the case 
before the Court ``does not involve whether the government must give 
formal recognition to any relationship that homosexual persons seek to 
enter.''
  In her concurring opinion, Justice O'Connor was even more explicit 
when she observed that the invalidation of the Texas statute ``does not 
mean that other laws distinguishing between heterosexuals and 
homosexuals would similarly fail. . . . Unlike the moral disapproval of 
same-sex relations--the asserted State interest in this case--other 
reasons exist to promote the institution of marriage beyond mere moral 
disapproval of an excluded group.'' These statements persuade me that 
the Supreme Court is, in fact, unlikely to strike down DOMA. In fact, 
in August 2004, a Federal bankruptcy court in Washington State ruled to 
uphold the constitutionality of DOMA, finding that there was no 
fundamental constitutional right to marry someone of the same sex.
  Let me end where I began. This amendment is not just about 
relationships between men and women but also about the relationship 
between the States and the Federal Government. I would not let a one-
vote majority opinion of a single State court lead us to ascribe to 
Washington a power that rightfully belongs to the States. To the 
contrary, our role should be to safeguard the ability of each State to 
exercise that power within its own borders.
  Ms. MIKULSKI. Mr. President, today I will vote against cloture on the 
motion to proceed to the Marriage Protection Amendment. This amendment 
is unneeded and unnecessary. It is divisive and it is a distraction 
from what the Senate should be doing, which is making families stronger 
and safer. First, I will vote against this amendment because it is 
unnecessary. Congress has already spoken on the issue. There is a 
Federal law and a State law in Maryland that defines marriage as 
between a man and a woman. I supported the Federal law because it 
allows each State to determine for itself what is considered marriage 
under its own State law. And 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.
  I am also opposing this amendment because I take amending the 
Constitution very seriously. In the entire history of the United States 
we have only amended the Constitution 17 times. Seventeen times in over 
200 years--that's it. We have amended the Constitution to extend 
rights, not to restrict them. We have amended the Constitution to end 
slavery, to give women the right to vote, and to guarantee equal 
protection of the laws to all citizens. We have never used the 
Constitution as a weapon against a minority of the population, to 
condone discrimination, and we should not embark on that path today. It 
is wrong and it undermines the integrity of our Constitution.
  This amendment is about politics; it is not about strengthening 
families. It is about helping Republicans get reelected. If Republicans 
were serious about helping families they would focus on jobs, health 
care, the raising cost of energy, and the cost of college tuition. This 
proposed amendment does not create one new job, pay for one bottle of 
prescription drugs, lower prices at the gas pump, or send one child to 
college. This amendment does not help a family pay for the health care 
of a sick child. It does not make sure that the parent of that child 
has a job with health care coverage. What it does is divide. Americans 
don't want to see this divisive debate as part of this year's 
elections. It is a dangerous distraction; it is an election year ploy.
  What do the American people want? They want to see how the Congress 
is fighting to make families stronger and safer. They want to see how 
we are standing up for all families. Families are stronger when we 
create jobs, control the costs of health care, and when we make sure 
that kids and schools have the resources they need to learn and 
educate. Families are stronger when we make sure our children have the 
best education we can offer and when we put these values in the Federal 
lawbooks and the Federal checkbook. And families are safer and stronger 
when they have help raising healthy children, when we build communities 
where they can thrive and when we create a family friendly Tax Code. 
Those are the actions that help to strengthen families and family 
values, not this amendment.
  Finally, I believe that we need to recognize the rights of gays and 
lesbians and their families. We should be focusing on helping to 
strengthen their families and all families. That is where we need to be 
putting our energy and devoting our attention, instead of on this 
divisive constitutional amendment.
  Mr. BYRD. Mr President, today I voted to invoke cloture on the motion 
to proceed to debate the constitutional amendment to ban same-sex 
marriage. Let me be clear: I have always strongly opposed same-sex 
marriage. I believe that there is much confusion about the role of the 
Federal Government and the institution of marriage, and that the public 
should have the benefit of a debate on the matter. It is my belief that 
the State of ``marriage'' can exist only between a man and a woman. The 
Bible tells us that marriage must be defined this way, and that the 
marriage vow between a husband and wife, meaning between a man and a 
woman, is sacred. I believe it. I have lived it. My darling wife Erma 
and I were married for nearly 69 years.
  I also believe that any substantive debate on this issue must examine 
not only the marriage relationship between a man and a woman but also 
the constitutional relationship between States and the Federal 
Government. It is the role of the Federal Government to preserve each 
State's prerogative to make laws concerning marriage and the family, 
since this is an area of the law traditionally left to the States. This 
is the essence of federalism. The job of the Congress is to preserve 
and protect the legislative authority of each State, so that, for 
example, unions legal in another State cannot be foisted onto the God-
fearing people of West Virginia.
  Largely because I believe so strongly in protecting West Virginia's 
ability to legislate in this area, I have been, and continue to be, an 
ardent advocate of the Defense of Marriage Act, DOMA. This law, which 
was passed by a bipartisan majority of the U.S. Congress and became law 
in September 1996, makes it clear that no State, including West 
Virginia, is required to give legal effect to any same-sex marriage 
approved by another State. DOMA also defines marriage for Federal 
purposes as being ``a legal union between one man and one woman as 
husband and wife,'' and a spouse as being only ``a person of the 
opposite sex who is a husband or a wife.''
  I strongly endorse the principles codified by DOMA. Not surprisingly, 
in 2000, West Virginia enacted its own law against same-sex marriage, 
similar to DOMA. Thus, title 48 of the West Virginia Code now precludes 
the State of West Virginia from giving legal effect to unions of same-
sex couples from other jurisdictions.
  As a consequence, both State and Federal law now prevent same-sex 
marriage in West Virginia. With these laws on the books, I do not 
believe it is necessary to amend the U.S. Constitution to address this 
issue. States such as West Virginia already have the power to ban gay 
marriages. State marriage laws should not be undermined by the Federal 
Government. Thus, our goal should not be to lessen the power of the 
several States to define marriage, but to preserve that right by 
expressly validating the role that they have played in this arena for 
more than 200 years.
  Mr. President, throughout the annals of human experience, the 
relationship of a man and woman joined in holy matrimony has been a 
keystone to the stability, strength, and health of human society. I 
believe in that sacred union to the core of my being.
  Mr. ENZI. Mr. President, I rise in support of S.J. Res. 1, the 
Marriage Protection Amendment. This important legislation, which was 
introduced

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by my distinguished colleague from Colorado, is simple and 
straightforward. It amends the U.S. Constitution to clearly define 
marriage as the union between one man and one woman.
  It is important to have this debate because the institution of 
marriage is under attack by some rogue local officials and activist 
judges who wish to push their agenda onto the majority of Americans. We 
need to have this debate to give the American people the opportunity to 
define marriage as they see fit. We need to remove the definition of 
marriage from the courts and return the decision making power to the 
American people.
  Marriage has traditionally been considered the union between a man 
and a woman. State common law practices have always assumed this to be 
the case. In addition to that, 45 States have some form of protection 
for the traditional marriage of a man and a woman. These States have 
done so with strong support from their citizens. Nineteen States have 
gone so far as to enact State constitutional amendments to define 
marriage as the union between one man and one woman. Those amendments 
have passed with support averaging more than 71 percent.
  What do these statistics make clear? The vast majority of Americans 
want the institution of marriage to be protected. They want to keep it 
as it has been: a union between one man and one woman.
  How can we be certain that the American people support defining 
marriage as the union between one man and one woman? By using the 
ultimate democratic tool: the constitutional amendment.
  Amending the Constitution is a rigorous task, and when our Founding 
Fathers drafted the Constitution, they worked to ensure that any 
decision to alter it was a decision that would be made by the American 
people. In order to amend the Constitution, we must get a two-thirds 
vote in each body of Congress, which as my colleagues know, is no 
simple task. After that vote has taken place, the proposed amendment is 
sent to the States, where three-fourth's of State legislatures must 
vote to ratify the proposal. That means that 38 of the 50 States must 
support this amendment.
  This is how the Framers of the Constitution intended our government 
to operate. A constitutional amendment places the final decision with 
the people, where it should be. Courts will no longer have the power to 
legislate the definition of marriage. Local officials will no longer 
have the ability to arbitrarily change the rules. The people will make 
the final call. Considering this amendment and sending it to the States 
for ratification is, in my opinion, the closest we can get to a truly 
democratic self-government.
  Why is such an amendment necessary? Opponents of S.J. Res. 1 argue 
that this is a State issue and that our Nation is governed by the 
Defense of Marriage Act. According to the Defense of Marriage Act, no 
State can be forced to recognize the marriage laws of another State. 
Although this is true, the Defense of Marriage Act is not exempt from 
the Constitution, and therefore, is not exempt from the political 
rulings of activist judges.
  The Defense of Marriage Act will not prevent an activist judge in 
State court from ignoring the will of that State's citizens if that 
judge forces them to redefine marriage. It does not prevent an activist 
judge in Federal court from ignoring the will of the people and forcing 
them to recognize a definition of marriage that is not their own.
  The only way to ensure that the American people define marriage is to 
pass a constitutional amendment. If the definition of marriage is 
clearly laid out in the Constitution, neither an activist judge nor a 
rogue local official can ignore that definition and impose his or her 
will on the American people.
  It is important to note that the Marriage Protection Amendment deals 
only with the institution of marriage. It does not alter a State's 
right to recognize civil unions or domestic partnerships. It does not 
deal with a State's ability to confer benefits upon same-sex couples, 
and so State governments can continue to grant those benefits if they 
so choose.
  Congress must enact the Marriage Protection Amendment to stave off 
the fragmentation that is sure to happen if different definitions of 
marriage exist. Passage of the Marriage Protection Amendment is 
necessary to the end judicial activism that has surrounded the marriage 
debate. It is necessary so that the American people can define marriage 
for themselves. And so, in closing, I strongly urge my colleagues to 
vote in favor of the Marriage Protection Amendment.
  Mr. McCONNELL. Mr. President, I rise to support S.J. Res. 1, the 
Marriage Protection Act, because any change to an institution as 
fundamental to our society as marriage should be made by the people, 
not unelected judges. The constitutional amendment process, being the 
closest process we have to a national referendum, is the best way for 
the people to speak on this important issue.
  By supporting this amendment, I in no way intend to question or 
slight the value and dignity of any American. Nor, in my judgment, do 
my colleagues who join me in supporting this amendment. Anyone who 
claims otherwise is wrong. The question that faces this Senate is a 
question of means--when something as profound as changing the 
institution of marriage arises, how should it be addressed?
  I submit that a handful of judges in a few States are not empowered 
and should not be permitted to make this decision for the entire 
country. But if we do not pass the Marriage Protection Act, that is 
precisely what may happen.
  Today, nine States face lawsuits challenging their traditional 
marriage laws. State supreme courts in New Jersey, Washington, and New 
York could decide same-sex marriage cases as early as this year. In 
California, Maryland, New York and Washington, State trial courts have 
already struck down marriage laws and found a right to same-sex 
marriage in their States' constitutions. Those decisions are awaiting 
appeal.
  Same-sex marriage advocates also have made Federal constitutional 
claims. In Nebraska, a Federal district court struck down that State's 
popularly enacted State constitutional amendment protecting traditional 
marriage, and the case is on appeal to the U.S. Court of Appeals for 
the Eighth Circuit. Challenges to the Defense of Marriage Act--DOMA--
are also pending in federal district courts in Oklahoma and Washington, 
and before the U.S. Court of Appeals for the Ninth Circuit.
  These attempts to redefine marriage through the courts have not gone 
away since this body last voted on a constitutional amendment to 
protect marriage in 2004. Since then, state courts in Washington, New 
York, California, Maryland, and Oregon have found traditional marriage 
laws unconstitutional.
  Every time they have been given the opportunity, the American people 
have strongly supported a traditional definition of marriage--the union 
of a man and a woman. Forty-five States currently have statutory 
protection for that very definition of marriage--all but Massachusetts, 
New Jersey, New Mexico, New York, and Rhode Island. Only four States 
had such statutory protection 12 years ago. The American people have 
made their wishes known to their State legislators: they are clearly 
and overwhelmingly for protecting marriage as we have always known it.
  I believe that traditional marriage, the union between a man and a 
woman, is the cornerstone of our society and the best possible 
foundation for a family. I believe that traditional marriage, the union 
between a man and a woman, should be the only form of marriage 
recognized by law. And I believe most Americans agree with me. But if 
nothing else, they deserve a chance to be heard.
  Mr. AKAKA. Mr. President, I rise today to oppose S.J. Res. 1, the 
Marriage Protection Amendment, which would bar same-sex marriages and 
prohibit the Federal Government and all

[[Page 10274]]

States from conferring ``the legal incidents'' of marriage on unmarried 
couples. I oppose this amendment on several grounds. First, if passed, 
this amendment would restrict the rights of an entire class of people. 
Second, the amendment would turn back the clock on the Supreme Court's 
decisions guaranteeing the right to privacy. Third, this amendment 
would abridge the traditional jurisdiction of State governments. 
Finally, the amendment would compromise the welfare of children 
currently being raised by same-sex parents.
  The proposed Marriage Protection Amendment directly contradicts one 
of the Constitution's fundamental principles--the guarantee of equal 
protection for all. Since the adoption of the Bill of Rights in 1791, 
the Constitution has been amended only 17 times and, with the exception 
of prohibition, each time it has been to expand the rights of the 
American people. Adoption of the Marriage Protection Amendment would 
tarnish that rich tradition by targeting a specific group for social, 
economic and civic discrimination. I believe that, as government 
leaders, it is our responsibility to protect individual liberties, not 
to take them away or restrict them.
  The Marriage Protection Act also undermines the numerous Supreme 
Court decisions which ensure individuals' right to freedom from 
government interference with regard to their personal lives. The 
Supreme Court has repeatedly reaffirmed that the Constitution protects 
an individuals fundamental freedom to make decisions regarding private 
matters such as marriage and family. The Marriage Protection Act would 
go a long way toward eroding these constitutional guarantees to the 
right to privacy.
  Customarily, marriage law has been left to the jurisdiction of the 
States. Passage of the Marriage Protection Amendment would define 
marriage at the Federal level and would prohibit States from exercising 
their authority over family law issues. As such, it would clearly 
violate the traditions of federalism and local control that have been a 
proud part of our national heritage. Allowing the Federal Government to 
co-opt what historically has been a prerogative of the States sets a 
dangerous precedent with regard to the erosion of States rights. My 
vote against the Marriage Protection Amendment is a vote for the 
preservation of State sovereignty.
  Given the Marriage Protection Amendment's broad and ambiguous 
language, it would have a potentially devastating effect on existing 
same-sex families. In particular, I am concerned how this amendment 
would impact the children currently being raised by same-sex parents. 
Not only would it curtail States from granting equal marriage rights to 
same-sex couples, it could also, through their parents, deprive 
children of access to health insurance, life insurance benefits and 
inheritance rights. According to the 2000 Census, more than one-half of 
the same-sex households in the United States have children under the 
age of 18. Passage of the Marriage Protection Amendment could place the 
current well-being and future security of these children at risk. This 
is a chance I am unwilling to take.
  I urge my colleagues in the Senate to reject this divisive bill. With 
so many problems currently facing our Nation such as the ongoing threat 
of terrorism, soaring gas prices and the high cost of medical care, 
now, more than ever, we need to work together as an ohana--a family. 
This amendment will only serve to segregate a portion of our population 
and prevent them from participating as full citizens. Instead I urge us 
all to work together to ensure that the freedoms enumerated by the 
Constitution can be equally enjoyed by all.
  Mr. SANTORUM. Mr. President, the Catholic Charities case in Boston, 
just 2 years after the introduction of same-sex marriage in America, 
highlights the growing concerns and indicates that the impact of this 
development on religious freedom has ceased to be a hypothetical 
discussion.
  As Maggie Gallagher wrote in her Weekly Standard piece ``Banned in 
Boston,'' ``[w]hen religious-right leaders prophesy negative 
consequences from gay marriage, they are often seen as overwrought . . 
. [and that the] First Amendment . . . will protect religious groups 
from persecution for their views about marriage.''
  So who is right? Is the fate of Catholic Charities of Boston an 
aberration or a sign of things to come? Some say we are overreacting, 
but the truth is that while the ramifications in the battle for social 
policy, procreation, and even protecting children may be clear, the 
real--but hidden--battlelines are for the religious liberty of all 
faiths. Recently the Becket Fund convened a group of scholars to 
discuss the implications of same-sex marriage on religious liberty. 
This group was from all parts of the political spectrum and had varying 
viewpoints, but all agreed on one thing--the legalization of same-sex 
marriage posed a real threat to the free exercise of religion.
  As I mentioned before, one of the participants, Maggie Gallagher, 
went on to write a prescient account of the participants' views on this 
issue, and I admit it was disturbing to read.
  In times past, it would have been unthinkable for a Christian or 
Jewish organization that was opposed to same-sex marriage to be treated 
as racists or bigots. But today the unthinkable may have become the 
inevitable. As Anthony Picarello summarizes, ``All the scholars we got 
together see a problem; they all see a conflict coming. They differ on 
how it should be resolved and who should win, but they all see a 
conflict coming.'' Why? Because of cases like that of Catholic 
Charities in Boston.
  As I discussed a little bit on the floor yesterday before I ran out 
of time, Catholic Charities in Boston has been the adoption provider in 
Massachusetts for many of the hardest to place children, including 
children with special needs. Following the legalization of same-sex 
marriage in Massachusetts, the Boston Globe reported that Catholic 
Charities of Boston had placed a small number of children with same-sex 
couples. Cardinal O'Malley of Boston responded that Catholic Charities 
would adhere to the Vatican statement prohibiting such placements in 
the future. That produced a hubbub with the Catholic Charities Board 
that was later quelled, but if Catholic Charities thought that was the 
end of the issue it was wrong.
  Like many States, Massachusetts requires that an entity be 
``licensed'' by the State in order to do adoptions. And to get the 
State license, the entity must agree to obey State laws barring 
discrimination--including in Massachusetts the prohibition on 
discrimination based on sexual orientation. When the Massachusetts 
Supreme Court legalized same-sex marriage, discrimination against same-
sex couples was also prohibited. These requirements juxtaposed with 
Catholic doctrine put the Catholic Church-affiliated Catholic Charities 
into a bind--one that legislatures, including this one, have often 
solved by allowing faith-based and religious organizations to maintain 
their integrity.
  Knowing that, Cardinal O'Malley and Governor Romney tried to get a 
religious exemption for Catholic Charities from the Massachusetts 
legislature. The silence from the politicians in that State was 
deafening. Without that protection, the bottom line is that the 
legislators in Massachusetts chose to put Catholic Charities out of the 
adoption business.
  Some say that the rightwing is pushing to pass this amendment, but I 
take you back to the scholars from the Becket Fund conference. Marc 
Stern, the general counsel for the center-left American Jewish Congress 
can hardly be called a rightwinger, but when asked what he would say to 
people who dismiss the threat to free exercise of religion as 
evangelical hysteria his quote was--``It's not hysteria, this is very 
real . . . Boston Catholic Charities shows that.'' He went on to say 
that ``in Massachusetts I'd be very worried.'' Stern noted that while 
the churches themselves might have a first amendment defense if a State 
government or State courts tried to withdraw their exemption, ``the 
parachurch institutions [affiliated organizations

[[Page 10275]]

such as Catholic Charities and United Jewish Communities] are very much 
at risk and may be put out of business because of the licensing issues, 
or for these other reasons--it's very unclear. None of us nonprofits 
can function without [state] tax exemption. As a practical matter, any 
large charity needs that real estate tax exemption.''
  Anthony Picarello of the Becket Fund sounded a more ominous note, 
that this change could fundamentally alter our view of religious 
liberty. ``The impact will be severe and pervasive,'' Picarello says 
flatly. ``This is going to affect every aspect of church-state 
relations.'' Recent years, he predicts, will be looked back on as a 
time of relative peace between church and state, one where people had 
the luxury of litigating cases about things like the Ten Commandments 
in courthouses.''
  Picarello points out something I discussed yesterday--that the church 
is surrounded on all sides by the government, and often the boundaries 
are hidden because of the ease with which they are navigated. However, 
as he notes, ``because marriage affects just about every area of the 
law, gay marriage is going to create a point of conflict at every point 
around the perimeter.''
  But not all of these scholars agree on the intensity or imminence of 
these consequences. Doug Kmiec of Pepperdine law school argued that the 
public could tell the difference between racial discrimination and the 
differentiation of traditional and same-sex marriage, saying that 
racial discrimination is ``irrational, and morally repugnant'' and the 
issue of same-sex marriage is ``at least morally debatable.'' Doug 
Laycock, a religious liberty expert at the University of Texas law 
school, noted that the legal situation is a long way away from equating 
sexual orientation with race in the law. However, Stern and Feldblurn 
were much more clear on the coming legal issues that religious 
organizations will face in the wake of same-sex marriage.
  And it is that distinction that is important--if sexual orientation 
is like race, then anyone, religious or otherwise, who opposes same-sex 
marriage will be viewed as and likely treated in the same way as the 
bigots who opposed interracial marriage. It is the political pressure--
and in some cases the legal pressure--that will ``punish'' those of 
differing opinions.
  For Chai Feldblum, a Georgetown law professor who refers to herself 
as a leader in the movement to advance LGBT--lesbian, gay, bisexual, 
trans-
sexual--rights, the emerging conflicts between free exercise of 
religion and sexual liberty are real. ``''When we pass a law that says 
you may not discriminate on the basis of sexual orientation, we are 
burdening those who have an alternative moral assessment of gay men and 
lesbians.'' Raised an Orthodox Jew, Feldblum argues that ``the need to 
protect the dignity of gay people will justify burdening religious 
belief, [b]ut that does not make it right to pretend these burdens do 
not exist in the first place, or that the religious people the law is 
burdening don't matter.''
  What effects could this ``sea change'' have on religious liberty? 
Let's consider a few examples.
  A religious educational institution could have its admissions 
policies, employment practices, housing rules, and regulation of clubs 
challenged. For example, Marc Stern is concerned about a California 
case where a private Christian high school expelled two girls who 
according to the school announced they were in a lesbian relationship. 
Will the schools be forced to tolerate both conduct and proclamations 
by students they believe to be acting in a sinful manner?
  Public accommodation laws can be used to force commercial enterprises 
to serve all comers, which begs the question of whether religious 
camps, retreats, or homeless shelters are considered places of public 
accommodation. Could a religious summer camp operated in strict 
conformity with religious principles refuse to accept children coming 
from same-sex marriages? What of a church-affiliated community center, 
with a gym and a Little League, that offers family programs? Must a 
religious-affiliated family services provider offer marriage counseling 
to same-sex couples designed to facilitate or preserve their 
relationships?
  Licensing issues will continue to be a bone of contention in not only 
adoption but psychological clinics, social workers, and marital 
counselors. We had to face this issue already in the Access to Recovery 
Program where program administrators were interpreting language in a 
way that sought to penalize faith-based providers such as Teen 
Challenge.
  And there are probably a plethora of other areas of friction that 
will emerge.
  Will speech against same-sex marriage be allowed to continue 
unfettered?
  Will anyone be able to again say that marriage should be between a 
man and a woman without being branded a bigot?
  Will a minister be able to preach from I Corinthians 6:9 that the 
unjust and immoral such as adulterers, prostitutes and sodomites will 
not inherit the earth?
  Will our local Catholic Charities lose their tax-exempt status if 
they do not bend their religious faith to the new norm?
  Will a rabbi or priest be forced to preside over same-sex marriages 
in order to continue to be able to consecrate traditional marriages?
  The scope of the ramifications of this debate are unclear, but there 
is no doubt that very serious issues arise. As Maggie Gallagher noted 
in her article, ``Marc Stern is looking more and more like a reluctant 
prophet: `It's going to be a train wreck,' he said `A very dangerous 
train wreck.'''
  I urge my colleagues to think carefully about the implications of 
doing nothing to protect the sanctity of marriage. If we do not act, 
then not only are we leaving this important issue in the hands of 
unelected judges, we are leaving the fate of all of these faith-based 
organizations in their hands as well. I urge my colleagues to support 
this amendment. Let's move forward in the democratic process and let 
the people decide.
  Mr. President, I yield the floor.
  The ACTING PRESIDENT pro tempore. The Senator from Colorado is 
recognized.
  Mr. ALLARD. Mr. President, how much time do I have?
  The ACTING PRESIDENT pro tempore. One minute 43 seconds.
  Mr. ALLARD. Mr. President, I yield 1 minute 15 seconds to the Senator 
from Alabama.
  The ACTING PRESIDENT pro tempore. The Senator from Alabama is 
recognized.
  Mr. SESSIONS. Mr. President, the people of the United States do care 
about marriage. Marriage is important. Our culture and the quality of 
life of our people in this Nation are important.
  Just yesterday, the people of my State, by an 81-percent majority, 
approved a constitutional amendment to the Alabama Constitution which 
said that no marriage license shall be issued in Alabama to parties of 
the same sex and the State shall not recognize a marriage of parties of 
the same sex that occurred as a result of the law of any other 
jurisdiction. But that amendment is in jeopardy by the court rulings in 
the United States, and a ruling that the U.S. Constitution requires 
that same-sex marriage be recognized just like other marriages will 
trump Alabama's constitution and that of the 19 other States which 
passed such resolutions by a vote of 71 percent.
  The only reason to oppose this amendment would be to deny the States 
the right to make this decision without having it overruled by the 
Supreme Court.
  The ACTING PRESIDENT pro tempore. The Senator from Colorado is 
recognized.
  Mr. ALLARD. Mr. President, you just heard the latest report from 
Alabama, a state constitutional amendment protecting marriage just 
passed with 81 percent of the vote. That is what my amendment is all 
about--to protect that vote conducted in Alabama from being subverted 
by a minority of activists going to court to try to overturn a vote 
like we just saw in Alabama.
  I ask my colleagues to join me in voting for S.J. Res. 1.

[[Page 10276]]

  The ACTING PRESIDENT pro tempore. Who yields time?
  Mr. ALLARD. Mr. President, I suggest the absence of a quorum.
  The ACTING PRESIDENT pro tempore. The clerk will call the roll.
  The bill clerk proceeded to call the roll.
  Mr. DURBIN. Mr. President, I ask unanimous consent that the order for 
the quorum call be rescinded.
  The ACTING PRESIDENT pro tempore. Without objection, it is so 
ordered.
  Mr. DURBIN. Mr. President, the ranking member of the Judiciary 
Committee, Senator Leahy, is on his way to the Chamber. I know the time 
is running. I will speak until he arrives. I wanted to make a point or 
two based on arguments used in this debate.
  Mr. President, 45 of 50 States passed either a constitutional 
amendment or a law defining marriage as between a man and a woman--45 
of 50 States. There is only one State in America where same-sex 
marriage is legal, and that is Massachusetts. No other State, county, 
city, or anyplace in America permits same-sex marriage.
  Incidentally, it is ironic that the State with the lowest divorce 
rate in America happens to also be Massachusetts. There is simply no 
crisis or controversy before us today that requires amending the 
Constitution.
  Another reason I oppose this amendment, as I indicated earlier, is 
that the language is vague and overbroad. The reference to ``legal 
incidents'' of marriage is troubling. The Senate Judiciary Committee 
held hearings on the meaning of the term ``legal incidents'' of 
marriage. I attended those hearings and questioned witnesses. There was 
simply no consensus on how the courts might interpret that.
  Some of the witnesses predicted courts would read it to ban civil 
unions. Some even think this amendment would be read by the courts to 
prohibit other efforts to equalize benefits, such as domestic partner 
benefits, adoption rights, and even hospital visitation rights.
  Is that what we want to do in the Senate, ban those who have a loving 
relationship from visiting their partners who are sick in a hospital? 
Passage of the Federal marriage amendment may well have that effect. We 
don't know.
  It is also a bad idea because it exemplifies the excessive 
overreaching by Congress into the personal lives and privacy of 
American citizens. How many times will the Republican majority march us 
into this question as to whether we can protect and defend the privacy 
of our rights as individuals and families?
  As I mentioned earlier, it is a sad reminder of the debate over the 
tragedy of Terri Schiavo, a woman who was sustained with medical care 
for some 15 years, and when the decision was made not to provide 
additional care for her through the courts, there was an effort made by 
the Republican leadership in Congress to bring the Federal courts into 
the picture to overturn the family's personal decision and the decision 
of the Florida courts. Congress tried to impose its own morality and 
its own will over the most personal, private, and painful decision any 
family can face. This amendment would impose the morality of some on 
the lives of all.
  A few months ago, this Nation lost one of its most famous and 
foremost civil rights leaders, Coretta Scott King. Upon Mrs. King's 
death, Majority Leader Frist submitted a Senate resolution to honor her 
life and commitment to social justice, and it was adopted unanimously.
  I wonder if the majority leader is aware of what Mrs. King had to say 
about the constitutional amendment that Senator Frist has brought to 
the floor this week. Here is what she said in 2004:

       A constitutional amendment banning same-sex marriages is a 
     form of gay-bashing and it will do nothing at all to protect 
     traditional marriages.

  I hope the Republican leadership, I hope every Senator, takes to 
heart the words of the civil rights hero they were so quick to honor a 
few months ago.
  It has been my experience in life that some members of my family, 
many of my acquaintances and friends are people of different sexual 
orientation. Most of them want to be left alone. They want the privacy 
of their own lives. They want to make their own decisions. And here we 
have an effort to impose in our Constitution a standard which reaches 
into the legal incidents of marriage, a standard which could deny to 
them some of the most basic things which we treasure, such as access to 
health insurance, access to visitation in hospitals, and the common 
decency of the social relationship which is all they are asking.
  Under those circumstances, I think it is important for us to reflect 
on the fact that when it comes to amending this Constitution, we should 
be ever so careful because a change in a few words in the Constitution 
can have a dramatic long-term negative impact on this great Nation.
  I see that my colleague, Senator Leahy, has arrived. I yield the 
floor to him.
  The ACTING PRESIDENT pro tempore. The Senator has 1 minute 15 seconds 
remaining.
  Mr. LEAHY. Mr. President, I thank my distinguished colleague from 
Illinois.
  This morning we will be voting on whether to proceed to a proposed 
amendment to the Constitution. I strongly oppose this divisive 
exercise.
  At a time when the Senate should be addressing Americans' top 
priorities, including ways to make America safer, the war in Iraq, 
rising gas prices, health care and health insurance costs, stem cell 
research, the erosion of Americans' privacy and the reauthorization of 
the Voting Rights Act, the President's political strategists and the 
Republican Senate leadership, instead, try to divide and distract from 
fixing real problems by pressing forward with this controversial 
proposed constitutional amendment.
  Rather than seek to divide and diminish, the Senate could be working 
against discrimination. I was honored to sponsor the Mychal Judge 
Police and Fire Chaplains Public Safety Officers' Benefit Act of 2002 
to ensure that the survivors of 9/11 were treated fairly regardless of 
sexual orientation. If we really want to do something that the Senate 
can do, we should join together in a bipartisan way to pass the hate 
crimes bill that would help stamp out and punish violent crimes against 
those attacked because of the color of their skin or their nationality 
or sexual orientation. If we really want to do something worthy of the 
Senate we should debate and pass legislation to end discrimination in 
employment based on sexual orientation. If we want to recognize the 
dignity and worth of others we should consider S. 1278, the Uniting 
American Families Act, a bill I introduced to bring fairness to our 
immigration laws.
  The Constitution is too important to be used for partisan political 
purposes. It is not a billboard on which to hang political posters or 
slogans seeking to stir public passions for political ends.
  I want all Americans to appreciate that if this proposed amendment 
became part of our Constitution, it would represent a dramatic 
departure from this Nation's history of expanding freedom and 
individual rights. We have only amended the Constitution seventeen 
times since the Bill of Rights was ratified in 1791. None of these 
amendments has served to limit the rights of an entire class of 
Americans. Furthermore, none of these amendments has dictated to the 
States how they should interpret their own constitutions. This proposal 
not only enshrines discrimination in the Constitution, it usurps what 
has always been the function of the States with regard to defining 
marriage. When each of us became Senators we swore an oath ``to support 
and defend the Constitution of the United States.'' I will honor that 
oath by opposing this effort to inject discrimination into the 
Constitution.
  This attempt will once again fail to garner the necessary votes to 
proceed. But that should not excuse the Republican leadership's turning 
away from the legislative agenda of the Senate for this election year 
adventure. I hope that the American people will object to this misuse 
of the Senate's time and authority the way they did when the Senate 
injected itself into the Schiavo

[[Page 10277]]

matter not so long ago. The American people want their leaders to unite 
this country and to solve real problems that they face every day. This 
constitutional amendment is a divisive political effort to shore up 
sagging poll numbers. I believe the American people will not be fooled 
and will see through this exercise.
  I look forward to moving on to the Nation's real priorities. The 
Senate should return to a place where we consider solutions to the 
problems that plague hardworking Americans, from soaring gas prices and 
high health care costs to corporate and Government corruption, from 
national security to effective fiscal and trade policies. We might 
consider taking action to preserve and improve rather than pollute the 
environment. Someday this Chamber might even debate the ongoing 
pandemic of AIDS or protect against the impending pandemic from bird 
flu. We might join in effective action seeking to halt the genocide in 
Darfur or oversight of the allegations of Government violations of the 
rights of Americans. I look forward to that time.
  Mr. President, I mentioned Monday at the start of this debate that 
over the last several years I have repeatedly written to the President 
about this issue and have yet to receive a response. I have already 
included in the Record a copy of my most recent letter to him on this 
constitutional amendment in which I asked what precise language it is 
that he supports and what it means.
  I noted that President Bush said in 2004 that ``States ought to be 
able to have the right to pass laws that enable people to be able to 
have rights like others,'' but no such thing is guaranteed by the 
proposed amendment that we are considering.
  The appearance of the President this week, where he reread what 
appeared to be a longer draft of his Saturday radio address to a 
handpicked audience of those seeking to amend the Constitution to write 
discrimination into it and create a constitutional intrusion into 
family law issues that have always been left to the States, was 
troubling in so many ways. At least that event was moved out of the 
White House Rose Garden, for which I am grateful. Sadly, the audience, 
which the White House described as a diverse cross section of community 
leaders, scholars, family organizations and religious leaders, was 
selected apparently to exclude gays and lesbians. That is hardly the 
way to engender fair and open debate or to show tolerance or to honor 
the dignity of all Americans.
  As this debate opened, I quoted the President's thoughtful words from 
the immigration debate. He said: ``We cannot build a unified country by 
inciting people to anger, or playing on anyone's fears, or exploiting 
the issue of immigration for political gain. We must always remember 
that real lives will be affected by our debates and decisions, and that 
every human being has dignity and value. . . .'' I wish that yesterday 
the President had honored that thought and merely substituted the issue 
of ``marriage'' for ``immigration''. The President is seeking to show 
leadership in the immigration debate and I have commended him for it. I 
cannot commend him for what he did yesterday.
  Just before the last election, President Bush said that ``States 
ought to be able to have the right to pass laws that enable people to 
be able to have rights like others.'' He cannot square that position 
with his and his administration's recently announced support for a 
proposed constitutional amendment that prohibits States from conferring 
the ``legal incidents'' of marriage on same-sex couples. In January 
2005, after he was reelected, President Bush himself recognized that 
this proposed constitutional amendment was not going to be adopted and 
that no good purpose was served by forcing more Senate debate on it. 
Yesterday, the President did not well serve this Nation or its diverse 
population. Our Nation would be better served if we refrained from 
divisiveness to score political and emotional points before an 
election.
  Moreover, yesterday the President's activities demonstrated how the 
Republican leadership's misplaced priorities and politics have diverted 
the Senate from matters that concern and affect the American people. By 
way of contrast, the Democratic leader went to the Senate floor to urge 
that we proceed to conference on the recently passed immigration bill. 
Senate Republicans objected to a usual practice of taking of a House-
passed bill and inserting the language passed by the Senate so that we 
can proceed to a House-Senate conference. Instead of spending time 
pandering to a segment of Republican's political base, the President 
could have worked with us to make progress on our bipartisan 
immigration initiative. Republicans and Democrats have said that we 
will need the President's help to make comprehensive immigration reform 
a reality. Yesterday the President was AWOL on the issue. He was not 
expending his efforts urging comprehensive immigration reform on the 
recalcitrant Republican House leadership or helping us in the Senate 
overcome threats of procedural objections to proceeding to conference.
  Another consequence of the Republican leadership's misplaced 
priorities is that the Judiciary Committee has yet to complete hearings 
on reauthorization of the Voting Rights Act. This is bipartisan, 
bicameral legislation on which I had hoped hearings would be complete. 
The final hearing on the reauthorization of important minority language 
provisions was scheduled for tomorrow. It has been postponed, and the 
excuse is that the Senate debate on this proposed constitutional 
amendment takes precedence. So our efforts to enact meaningful, 
comprehensive immigration reform with strong border security and a path 
to earned citizenship and our efforts to reauthorize the protections of 
the Voting Rights Act have both been adversely affected as a 
consequence of the Republican leadership insisting on proceeding to 
this extended debate.
  The demagoguery in the President's rally this week and the Statement 
of Administration Policy are sad to see. It is not the institution of 
marriage that is under attack but the Constitution and our system of 
federalism. They seek to justify their attack by demonizing judges. The 
comment the President added to his radio address was to ratchet up the 
rhetoric against judges by proclaiming that judges ``insist on imposing 
their arbitrary will on the people.'' This President just appointed 
Chief Justice Roberts to lead the U.S. Supreme Court and the judicial 
branch of the Federal Government. He has appointed approximately 250 
Federal judges, including 2 Supreme Court Justices and 45 judges on the 
courts of appeals. The majority of Federal judges have been appointed 
by Republican Presidents. Any judicial decision that was a dramatic 
departure from the status quo on this issue would certainly be appealed 
to the U.S. Supreme Court where seven out of nine justices have been 
appointed by Republican Presidents. Does anyone really believe that 
Chief Justice Roberts is going to preside over a U.S. Supreme Court 
that imposes same-sex marriage as an act of ``arbitrary will''?
  I agree with the Senior Senator from Virginia who recently voiced his 
``grave concerns'' about the proposed amendment because it fails to 
``speak with the clarity to which the American People are entitled.'' I 
too have significant concerns about the vague prohibition of ``the 
legal incidents'' of marriage for same-sex couples. That ambiguity 
raises serious questions whether State laws allowing civil unions and 
civil partnerships would be overridden and rendered 
``unconstitutional.'' Numerous witnesses at our committee hearings 
testified that the proposed language would or could invalidate civil 
unions or prevent States from enacting laws that closely mirrored the 
rights of marriage couples.
  Although the President and some Senate supporters contend that this 
proposed amendment binds only judges and not State legislatures and 
that it prohibits only marriage but not civil unions or partnerships, 
that is not clear in the language of the proposed constitutional 
amendment. Ironically, it will be judges who have the last word in 
determining the meaning of words used in a constitutional amendment.

[[Page 10278]]

So the very ``boogeymen'' that the proponents of this proposed 
constitutional amendment seek to create by demonizing judges will be 
those who will be forced to decide the effect of its intentionally 
ambiguous wording.
  I trust the American people will see through these escapades. I trust 
they will abhor the attack on the Constitution as I do. I believe they 
have bigger hearts and compassion of the families of committed same-sex 
couples. I hope they will hold accountable those who are expending the 
Senate's time on this futile exercise by denying them partisan gain.
  I have previously noted that the news accounts and editorials 
characterizing this effort as crassly political are too numerous to 
include in the Congressional Record. On this occasion, I ask unanimous 
consent to have printed in the Record a sampling from a variety of 
newspapers and outlets from around the country including editorials 
from the Arkansas Democrat-Gazette from May 24, 2006, the Atlanta 
Journal-Constitution from May 28, 2006, the Berkshire Eagle from May 
23, 2006, the Chicago Sun-Times from June 6, 2006, the Pittsburgh Post-
Gazette from May 22, 2006, the Salt Lake Tribune from April 29, 2006, 
and a commentary by CNN's Jack Cafferty from June 2, 2006.
  There being no objection, the material was ordered to be printed in 
the Record, as follows:

    [From the (Little Rock) Arkansas Democrat-Gazette, May 24, 2006]

                  Democrats Must Confront GOP Strategy

                            (By Gene Lyons)

       So here's the big Republican agenda for the 2006 elections: 
     Other people's sex lives (a.k.a. gay marriage), flag-burning, 
     illegal Mexican immigrants, tax cuts and Chicken Little.
       There's no surprise about the first few. A GOP campaign 
     resembles a traveling tent show. White House sideshow barker 
     Karl Rove expects that the rubes who line up every two years 
     to see the two-headed calf and the bearded lady will fall for 
     flag-burning again. Never mind that Republicans have done 
     nothing about it since President Bush's father visited a flag 
     factory during his 1988 campaign. Flag burning as a protest 
     all but disappeared after 9/11. Sen. Hillary Clinton, D-N.Y., 
     also has joined this crusade, the surest sign that she's 
     contemplating running for president in 2008.
       Amending the Constitution to forbid gay marriage is another 
     election-year shell game. Finessing it shouldn't be too hard 
     for Democrats. If your church refuses to solemnize same-sex 
     marriages, that's its undeniable First Amendment right. 
     Forbidding people to enter into domestic partnership 
     contracts due to sexual orientation, however, would be un-
     American.
       No, that won't persuade obsessive homophobes, but they're 
     fewer all the time. Illegal immigration's something else 
     Republicans have ignored for six years. Ironically, Bush's 
     stance reflects the ``compassionate conservatism'' he 
     campaigned on in 2000 but abandoned, maybe because Mexican 
     immigration is a very old story in Texas that he actually 
     knows something about.
       Ironically, that's got the GOP's Knothead faction all riled 
     up, helping GOP congressmen in safe districts distance 
     themselves from an increasingly unpopular White House, but 
     also hurting Republicans among Hispanic voters in swing 
     districts.
       Ditto tax cuts. Even the most credulous are getting uneasy 
     with the GOP's ongoing war on arithmetic and worried about 
     spiraling debt caused by Bush's profligate spending.
       Influential conservative author-activist Richard A. 
     Viguerie recently wrote a Washington Post op-ed predicting 
     that ``without a drastic change in direction, millions of 
     conservatives will . . . stay home this November. And maybe 
     they should. Conservatives are beginning to realize that 
     nothing will change until there's a change in the GOP 
     leadership. If congressional Republicans win this fall, they 
     will see themselves as vindicated, and nothing will get 
     better.'' Which brings us to the Chicken Little theme on 
     which Republican hopes appear to hinge. Sen. Elizabeth Dole, 
     R-N.C,, first raised it in a recent fund-raising letter on 
     behalf of the party's Senatorial Campaign Committee. If 
     Democrats regain Congress, see, they'll act the way 
     Republicans acted toward Bill Clinton, calling for ``endless 
     investigations, congressional censure and maybe even 
     impeachment of President Bush.'' And then the terrorists 
     would win!
       Many pundits who helped publicize the 1,000-odd subpoenas 
     that congressional Republicans dispatched to the Clinton 
     White House find the prospect of Democrats issuing subpoenas 
     terribly alarming. Slate's John Dickerson worries that a 
     Democratic-led House might ``get bogged down with 
     investigations and embrace the worst Bush-hating tendencies 
     of its members.'' Time columnist Joe Klein, a.k.a. 
     ``Anonymous,'' author of the novel'' Primary Colors,'' who's 
     grown adept at advancing Gap themes while affecting to 
     deplore them, laments that the likely succession of Rep. John 
     Conyers, D-Mich., to chair the House Judiciary Committee if 
     Democrats win in November gives Republicans a chance to play 
     the race card.
       Because Conyers is African American and has sometimes used 
     the words ``Bush'' and ``impeachable offense'' in the same 
     sentence, Klein fears that Rove will have a field day 
     depicting the veteran Detroit congressman as Kenneth Starr in 
     blackface.
       The idea that irrational hatred of Bush motivates most 
     Democrats is a favorite topic on the talkradio right. 
     Psychologists call it ``projection,'' attributing to others 
     motives that mirror your own.
       The best way for Democrats to deal with this Chicken Little 
     theme is straight on, as Conyers has attempted to do. In a 
     recent Washington Post column, he correctly identified the 
     ``straw-man'' logical fallacy that underlies it: attacking 
     arguments your adversary has never actually made.
       Years of one-party government, Conyers said, have left 
     Americans with many unanswered questions, such as ``whether 
     intelligence was mistaken or manipulated in the run-up to the 
     Iraq war . . . the extent to which high-ranking officials 
     approved of the use of torture . . . whether the leaking of 
     the name of a covert CIA operative was deliberate or 
     accidental'' and who did it.
       Any alert citizen can add particulars: the legality of 
     National Security Agency's warrantless wiretaps and the 
     constitutionality of Bush's 740 ``signing statements,'' as 
     reported by The Boston Globe, in which the president claims 
     the power to ignore laws with which he disagrees.
       Conyers wisely stresses that the GOP-led House impeachment 
     of Clinton proved ``that partisan vendettas ultimately 
     provoke a public backlash and are never viewed as 
     legitimate.'' Nobody wants a government that does nothing but 
     investigate itself. But the Republican Congress has 
     completely abdicated its constitutional responsibilities. Our 
     democracy cannot long survive a president who claims the 
     prerogatives of a king.
       That's an argument the Democrats must win.
                                  ____


         [From the Atlanta Journal-Constitution, May 28, 2006]

            On Gay Unions, Pandering Rises Above Principles

                          (By Cynthia Tucker)

       In 1964, just one congressman from the Deep South, 
     Atlanta's Charles Weltner, voted for the Civil Rights Act. 
     For all practical purposes, his righteous leadership on civil 
     rights--he also supported the Voting Rights Act--cost him his 
     congressional career.
       In 1966, he resigned his seat rather than sign an act of 
     loyalty to the segregationist Lester Maddox, as Georgia 
     Democrats insisted. But some analysts believe he would have 
     lost the race for re-election.
       Doing the right thing is difficult because it often means 
     losing. And the typical politician is willing to lose 
     anything--honor, integrity, dignity--but an election.
       That helps explain why, during this election season, so few 
     politicians have stepped forward to denounce initiatives 
     against gay marriage as the cynical and opportunistic tactics 
     that they are. They know that playing on prejudice and fear 
     can rally a certain constituency and provide the winning 
     margin in tight races.
       It certainly worked two years ago. Republican tacticians 
     maneuvered to add amendments against gay marriage to the 
     ballots in 11 States, including Georgia. The result was to 
     lure religious conservatives to the polls in large numbers, 
     probably giving President Bush the boost he needed in the 
     battleground state of Ohio.
       This year, conservative Republicans--struggling against 
     voter discontent over Iraq, health care and high gas prices, 
     among other things--are desperate to bring those religious 
     conservatives back to the polls. So they've resurrected the 
     same tired tactic. Next month, the Senate is expected to vote 
     on an amendment to the U.S. Constitution banning same-sex 
     unions.
       Senate leaders haven't made much of an effort to disguise 
     the initiative as anything other than the base political ploy 
     that it is. After a frenzy of gay-bashing during the 2004 
     campaign season--they thundered against gay marriage as a 
     threat to just about every family tradition, from man-woman 
     marriages to peanut-butter-and-jelly sandwiches--Republican 
     leaders hadn't even mentioned the issue again. The threat 
     disappeared for two years. Until now, when they're facing the 
     prospect of losing control of Congress.
       Given the stakes, prominent Republicans won't get in the 
     way of a good wedge issue. Oh, first lady Laura Bush has 
     pointed out the unfairness of a constitutional amendment. So 
     has Mary Cheney, the vice president's gay daughter, who lives 
     openly with her partner of 14 years, Heather Poe, and has 
     recently published her memoirs. This month, Cheney told CNN 
     that ``writing discrimination into the Constitution of the 
     United States is fundamentally wrong.''
       But it's unlikely you'll hear the vice president arguing 
     against the amendment so pointedly on the campaign trial. 
     While he

[[Page 10279]]

     has said in the past that he opposes it, he'd rather remind 
     his right-wing supporters of his staunch support for the 
     invasion of Iraq. President Bush, for his part, has spent his 
     last pennies of political capital trying to pass a humane 
     policy on immigration. He may not fight for an amendment 
     banning gay marriage, but he's unlikely to get in the way of 
     it, either.
       In Georgia, meanwhile, even progressive politicians have 
     been cowed by the state's overwhelming consensus against gay 
     marriage. Though 76 percent of Georgia voters approved the 
     ban two years ago, a Superior Court judge recently struck 
     down the amendment on technical grounds. After the ruling, 
     Gov. Sonny Perdue, a Republican, quickly announced plans for 
     a special session of the legislature to rewrite the ban and 
     place it before voters again in November. His two Democratic 
     opponents, Lt. Gov. Mark Taylor and Secretary of State Cathy 
     Cox, rushed to support the move.
       Cox's awkward leap onto the bandwagon was especially 
     disappointing. While Taylor had supported the ban, Cox had 
     pointed out two years ago that the amendment is 
     ``unnecessary.'' Georgia law, like federal law, already bans 
     same-sex unions. But many analysts have noted that Cox is 
     desperate to draw black voters away from Taylor in the 
     Democratic primary for governor; black Georgians, like their 
     white neighbors, gave their unabashed support to enshrining 
     bigotry in the stare Constitution.
       Cox, like most other politicians, would rather pander to 
     the prejudices of voters than stand by her principles. It's a 
     perfectly human inclination--doing the safe thing, rather 
     than the right thing.
       There are never more than a handful like Wettner, who 
     preferred losing a campaign to sacrificing his conscience. In 
     his resignation speech, he declared, ``I love the Congress, 
     but I will give up my office before I give up my principles . 
     . . I cannot compromise with hate.''
       His courage is as rare now as it was then.
                                  ____


       [From the Berkshire Eagle, (Pittsfield, MA) May 23, 2006]

                        More Amendment Politics

       Senate Republicans want to make gay marriage an issue this 
     election year, but the issue should be less gay marriage 
     itself than a congressional leadership so hypocritical and 
     devoid of real ideas that it must again resort to the 
     politics of distraction out of desperation. Gays are not a 
     threat to America, but congressmen who would tinker with the 
     Constitution to protect their seats assuredly are.
       By a 10-8 vote that fell strictly along party lines, the 
     Senate Judiciary Committee last week approved a 
     constitutional amendment that would ban gay marriage. The 
     constitution has been amended 27 times, but always to protect 
     civil liberties or to provide them to groups that didn't have 
     them. This would be the first time that the Constitution was 
     amended specifically to deprive a group of civil liberties, 
     adding to the general assault by Washington on the rights of 
     Americans.
       The full Senate is expected to vote on the amendment when 
     it returns from its Memorial Day recess, and while it will be 
     difficult for the measure to win the necessary two- thirds 
     majority required to begin the amendment process, passage is 
     not the primary goal of the GOP. By simply proposing the 
     amendment, it hopes to gain support of a religious right that 
     puts social issues above all else. A party with nothing but 
     domestic and foreign policy failures on its resume can't 
     afford to lose its rabid rightwingers if it hopes to maintain 
     power in Congress this November. It's a strategy that for all 
     its cynicism worked two years ago when gay marriage was on 
     several state ballots.
       First Lady Laura Bush, often the voice of reason in the 
     White House, went on Fox News earlier this month to urge 
     Congress to abandon these efforts on the grounds that the gay 
     marriage issue is too complex to be handled legislatively and 
     civil rights should not be deprived by a governmental body. 
     Ms. Bush's stance is a traditional conservative one, but the 
     ``conservatives'' who hold sway in the modern Republican 
     Party are in fact radicals whose affection for big government 
     and disregard for the civil rights of Americans should be 
     abhorrent to true conservatives. A question to be answered 
     Election Day is whether true Republicans will reclaim their 
     party and principles.
                                  ____


               [From the Chicago Sun Times, June 6, 2006]

                   Senate Should Focus on Real Issues

       Even by Congress' smoke-blowing standards, the insistence 
     of Republicans on debating a constitutional amendment to ban 
     gay marriage reeks of politics--election-year politics, 
     whatever White House press secretary Tony Snow's doubts about 
     this not being ``a big driver among voters.'' You would think 
     more pressing issues would command attention in the Senate. 
     Such a ban has failed before there, with all but one Democrat 
     opposing it. You would think its scant chance of passing--it 
     would require a two-thirds majority in both chambers and then 
     approval by three-quarters of the states--would take the hot 
     wind out of the anti-gay-marriage faction's sails.
       But with public approval of the president low, Republicans 
     are convinced restirring the emotions of this issue will 
     rally support for him and those GOP hopefuls looking to 
     November. President Bush is right about not wanting judges, 
     ``activist'' or not, to decide this issue. It should, as he 
     said, be left ``where it belongs: in the hands of the 
     American people.'' But the last time we looked, most 
     Americans were more concerned about national security, 
     immigration and the avian flu than they were the supposed 
     threat of wedded gays. The federal government should honor 
     states' rights and let them make this call.
                                  ____


            [From the Pittsburgh Post-Gazette, May 22, 2006]

        Family Feud; Sparks Fly in the Senate Over Gay Marriage

       Something petty--a shouting match in the U.S. Senate 
     Judiciary Committee last week--nevertheless echoes strongly 
     with a warning for any thoughtful American concerned about 
     the temper of the times. The spat occurred as the committee 
     considered a constitutional amendment to ban same-sex 
     marriage.
       In part, the clash between Pennsylvania Republican Sen. 
     Arlen Specter, the committee chairman, and Sen. Russ 
     Feingold, a Democrat from Wisconsin, was about a change in 
     venue for the committee meeting. But the overarching context 
     was the Democratic belief--well-founded, as it happens--that 
     this amendment is all about currying political favor with the 
     Republicans' right-wing base and in the process painting 
     Democrats as the defenders of gay marriage.
       This worked a treat for those supporting President Bush in 
     the 2004 presidential election, when 11 states had 
     initiatives on gay marriage or civil unions to inflame the 
     voters' prejudices at the polls.
       The scene in the Judiciary Committee was childish and 
     undignified, perhaps as befitting the nonsense before it. 
     After Sen. Feingold declared his opposition to the amendment 
     and his intention to walk out, Sen. Specter said: ``I don't 
     need to be lectured by you. You are no more a protector of 
     the Constitution than am I.'' He bid the Democrat ``good 
     riddance.''
       Actually, Sen. Feingold has a better claim to be a 
     protector of the Constitution; he doesn't want to see it 
     larded up with a piece of bigotry in which a majority 
     motivated by religious belief seeks to deprive a small 
     minority of the benefits of matrimony. Ironically, Sen. 
     Specter is ``totally opposed'' to the bill but thinks it 
     should go to a vote. And it will--probably in the week of 
     June 5--as the result of the committee's 10-8 party-line 
     vote.
       As a practical matter, the amendment is not needed. A 
     majority of conservative justices on the U.S. Supreme Court 
     can be expected to support the existing federal Defense of 
     Marriage Act of 1996--so states such as Pennsylvania do not 
     have to recognize any same-sex marriages granted elsewhere. 
     Indeed, if protecting the sanctity of marriage was the real 
     goal, the amendment would ban divorce, or at least ban 
     divorced people from marrying again. Of course, we don't 
     propose that ourselves, but the backers of the gay marriage 
     amendment would do so if they were consistent.
       But consistency and logic are not the point. The political 
     power of the amendment, like the proposed effort to do 
     something similar in Pennsylvania, resides in its bullying 
     and hypocrisy. This is about selecting convenient scapegoats 
     and feeling righteous as the administration pursues a sort of 
     anti-Gospel in which social programs are cut and policies are 
     pushed to favor the rich over the poor.
       Sadly, any shouting matches--as in the Senate Judiciary 
     Committee--are to be expected because promoting rancor and 
     division are the real point. We can only hope that wiser 
     heads will prevail in Congress as this amendment proceeds.
                                  ____


              [From the Salt Lake Tribune, April 29, 2006]

         Bill of Wrongs: No Need for Federal Marriage Amendment

       It's hard to claim you are campaigning for states' rights 
     when the measure you are promoting would rewrite all 50 state 
     constitutions in one stroke.
       And it's hard to claim you are campaigning for individual 
     rights, or for religious rights, when the proposal you back 
     would impose a federalized definition for the very personal 
     and, usually, religious institution of marriage.
       The proposed ``Marriage Protection Amendment'' has drawn 
     support from The Church of Jesus Christ of Latter-day Saints 
     and a spectrum of other faiths, known collectively as the 
     Religious Coalition for Marriage. That group argues, as 
     unconvincingly as everyone else who makes the point, that the 
     growing acceptance of same-sex unions threatens the 
     institution of marriage.
       This unwise move to amend the basic law of the United 
     States follows successful campaigns to change a few state 
     charters, including Utah's, to ban same-sex marriage. But, 
     beyond being merely redundant to those state efforts, the 
     proposed federal amendment also picks up a serious flaw that 
     was part of 2004's Utah Amendment 3.
       Utah's constitution does not merely bar same-sex couples 
     from the legal institution of marriage. It prevents them from 
     crafting

[[Page 10280]]

     any ``other domestic union, however denominated,'' That, 
     despite the misleading reassurances of the measure's 
     supporters before the vote, has since been shown to be a 
     useful tool for knocking the pins out from under simple and 
     reasonable domestic partnership agreements that should be the 
     right of any adult to enter, and within the purview of any 
     religious order to sanctify, or not, as it chooses.
       Likewise, the federal proposal would reasonably preserve 
     the term ``marriage'' for the traditional arrangement of ``a 
     man and a woman.'' But, again, it would unreasonably go on to 
     dictate that every state read its own constitution to deny 
     any constitutional protection to the notion that marriage 
     ``or the legal incidents thereof' should be extended to same-
     sex relationships.
       Such an overbroad, if not downright nasty, attack on 
     domestic partnerships is not necessary to reserve the title 
     of ``marriage'' to its traditional understanding. It doesn't 
     belong in any state's constitution. And we certainly don't 
     want it cluttering up the Constitution of the United States.
                                  ____


                [From the Situation Room, June 2, 2006]

       Jack Cafferty, CNN anchor: Hi, Wolf.
       Guess what Monday is? Monday is the day President Bush will 
     speak about an issue near and dear to his heart and the 
     hearts of many conservatives. It's also the day before the 
     Senate votes on the very same thing. Is it the war? Deficits? 
     Health insurance? Immigration? Iran? North Korea?
       Not even close. No, the president is going to talk about 
     amending the Constitution in order to ban gay marriage. This 
     is something that absolutely, positively has no chance of 
     happening, nada, zippo, none. But that doesn't matter. Mr. 
     Bush will take time to make a speech. The Senate will take 
     time to talk and vote on it, because it's something that 
     matters to the Republican base.
       This is pure politics. If has nothing to do with whether or 
     not you believe in gay marriage. It's blatant posturing by 
     Republicans, who are increasingly desperate as the midterm 
     elections approach. There's not a lot else to get people 
     interested in voting on them, based on their record of the 
     last five years.
       But if you can appeal to the hatred, bigotry, or 
     discrimination in some people, you might move them to the 
     polls to vote against that big, bad gay married couple that 
     one day might move in down the street.
       Here's the question: Is now the time for President Bush to 
     be backing a constitutional amendment to ban gay marriage?

  In conclusion, Mr. President, we should be addressing America's top 
priorities, including ways to make America safer, the disastrous war in 
Iraq, rising gas prices, health care and health insurance costs, stem 
cell research, erosion of America's privacy, the reauthorization of the 
Voting Rights Act, but now we are going to talk about something that is 
here simply for politics. Rather than seeking to divide and diminish, 
the Senate could be working against discrimination.
  Why are we amending the Constitution to do something the States can 
do? Every State can pass and has passed laws about what will be the 
marriage laws in their State. No State is able to pass a law that is 
going to force another State to accept something they do not want. We 
passed the Defense of Marriage Act in the Congress for that.
  The ACTING PRESIDENT pro tempore. The Senator's time has expired.
  Mr. LEAHY. Mr. President, I think we are doing what we did in the 
Schiavo matter: We are playing politics with the basic rights of 
people, and it is wrong.
  The ACTING PRESIDENT pro tempore. Who yields time?
  Mr. LEAHY. Mr. President, what is the parliamentary situation?
  The ACTING PRESIDENT pro tempore. The time until 10 o'clock is 
reserved for the majority leader or his designee.
  Mr. LEAHY. Mr. President, obviously, I am not going to take the 
majority leader's time. Certainly, if anybody on the Republican side 
seeks recognition, I will immediately yield the floor to them. I was 
hoping they would be here.
  I note the chairman of the Judiciary Committee and I are in an 
asbestos hearing. I was asked by somebody the other day if I felt that 
marriage would be threatened if we didn't pass this. I have been 
blessed to be married to the same woman for 44 years. I don't feel 
threatened by it.
  Mr. President, I suggest the absence of a quorum.
  Mr. REID. Mr. President, I rise once again to express my strong 
opposition to the motion to proceed to this constitutional amendment. 
There are so many other issues we should be debating instead of this 
divisive and deeply flawed proposal.
  We should be debating the raging war in Iraq. We should be debating 
our staggering national debt. We should be debating global warming. We 
should be debating stem cell research.
  But we should not be debating a vague and unnecessary proposal to 
amend the U.S. Constitution. This week's debate is a textbook 
illustration of misplaced priorities.
  As Chairman Specter has said, the Federal Marriage Amendment is a 
solution in search of a problem. The 1996 Defense of Marriage Act, 
which I supported, remains the law of the land. It defines marriage for 
purposes of Federal benefits as the union of a man woman, and provides 
that no State shall be required to recognize same-sex marriages 
performed in any other.
  DOMA has been challenged three times, including in the Ninth circuit, 
and each time it has been upheld.
  DOMA is consistent with principles of federalism and the longstanding 
tradition in our system that matters of family law should be left to 
the States and not dictated by the Federal Government.
  In my home State of Nevada, we passed a State constitutional 
amendment in 2002 making clear that only a marriage been a man and a 
woman can be recognized and given effect in Nevada. I supported that 
measure.
  Supporters of the Federal Marriage Amendment say that State laws like 
Nevada's are under ``assault'' by ``activist judges.'' The Nevada law 
is not under ``assault'' by anyone. There are no court cases regarding 
marriage for same-sex couples in Nevada.
  The decision about how to define marriage was made by the people of 
Nevada for themselves, and it wasn't dictated to them by politicians in 
Washington. That's how it should be.
  In contrast, this Federal amendment would dictate to each State how 
to interpret its own State laws. This is an unwarranted intrusion into 
the autonomy of State legal systems.
  In any event, this is not an appropriate subject for a constitutional 
amendment. For over 200 years, the Constitution has had no provision on 
marriage, and we have left this and other family law issues to the 
states and to this Nation's religious institutions.
  Our Constitution has only been amended 17 times after the Bill of 
Rights was adopted in 1791. Only 17 times in 215 years.
  Several years ago the nonpartisan Constitution Project convened a 
committee of constitutional scholars, civic leaders, and other 
prominent Americans to develop criteria for when a constitutional 
amendment is justified. They wrote that our Constitution should be 
``amended only with the utmost care, and in a manner consistent with 
the spirit and meaning of the entire document.''
  This amendment fails that test. It does not make our system more 
politically responsive. It does not protect individual rights. As James 
Madison wrote in Federalist No. 49, the Constitution should only be 
amended on ``Great and Extraordinary Occasions.'' This is not such an 
occasion.
  Earlier this year, former Republican senator John Danforth of 
Missouri spoke about this amendment and this is what he had to say:

       Maybe at some point in time there was one that was sillier 
     than this one, but I don't know of one. . . . Once before the 
     Constitution was amended to try to deal with matters of human 
     behavior, that was prohibition, that was such a flop that 
     that was repealed 13 years later.

  I agree with my distinguished former colleague that this is not an 
appropriate subject for a constitutional amendment.
  I hope the American people will see this amendment for what it is. 
This amendment is not about whether any of the Members in this body 
support or oppose same-sex marriage.
  This amendment is about raw election year politics. It has zero 
chance of passing, and everybody knows that.
  Those who would use the Constitution as a political bulletin board 
should be ashamed of themselves. Our Constitution deserves better. And 
the American people deserve better.

[[Page 10281]]


  Mr. FRIST. Mr. President, over the past couple of days, we have had a 
good, rigorous debate on the future of marriage in America. I thank 
Senator Allard and Senator Brownback for managing the debate and my 
colleagues who have come to the floor to very thoughtfully and 
thoroughly lay out the legal and cultural issues that are at stake.
  Throughout human history and culture, the union between a man and a 
woman has been recognized as the cornerstone of society. Marriage 
serves a public act, a civil institution that binds men and women in 
the task of producing and nurturing children--husband and wife, father 
and mother--building a family in a community over a lifetime.
  At its root, marriage is and always has been a public institution 
that formalizes that family bond. Some on the other side have said that 
the strength and stability of marriage is a distraction of little 
concern to the broader public. And I couldn't disagree more.
  As it so happens, they used the very same argument 2 years ago. They 
said the States had little interest in preserving traditional marriage; 
voters didn't care; other issues were more important. That argument 
wasn't true then, and it is even less true now.
  Marriage, as we know it, is under assault. Activist courts are 
attempting to redefine marriage against the expressed wishes of the 
American people. And if marriage is redefined for some, it will be 
redefined for all.
  Last year, voters in 13 States passed by enormous margins State 
constitutional amendments to protect marriage. Mr. President, 19 States 
now have State constitutional amendments. Another 26 have statutes 
doing the same. Alabama voters, yesterday, endorsed an amendment to 
protect marriage. In total, 45 States have either State constitutional 
amendments or State laws to protect marriage.
  Tennessee, which will give voters the opportunity to voice their 
opinion this November, is one of six States with similar amendments to 
its constitution that are pending. No State--no State--has ever 
rejected an effort to protect traditional marriage when it has been on 
the ballot.
  Voters across the country, from red States to blue, have voted 
overwhelmingly to protect traditional marriage. But that has not 
stopped the same-sex marriage activists from taking their campaigns not 
to the American people but to the courts. Indeed, their losses at the 
ballot box have only fueled their judicial activism.
  Currently, nine States have lawsuits pending. In five States, courts 
could redefine marriage by the end of the year. In California, 
Maryland, New York, and Washington, State trial courts have already 
followed Massachusetts and declared their State constitution's 
definition of marriage unconstitutional. All of these cases are on 
appeal.
  A Federal judge in Nebraska overturned a democratically enacted State 
constitutional amendment protecting marriage. That ruling is now under 
appeal in the Eighth Circuit.
  Another Federal court case in Washington challenges the 
constitutionality of the Federal Defense of Marriage Act. That case is 
stayed pending resolution of litigation in the Washington State Supreme 
Court. Court watchers are expecting a ruling soon.
  With all of this litigation pending, there is little doubt that the 
Constitution will be amended. The only question is whether it will be 
amended by Congress working the will of the people or by judicial fiat. 
Will activist judges override the clear intention of the American 
people or will the people amend the Constitution to preserve marriage 
as it has always been understood?
  In Massachusetts, the people have never had a say. The State's 
supreme judicial court demanded the State sanction same-sex marriage. A 
majority of the court substituted their personal policy preferences for 
that of the people, and the consequences of that activism spread far 
beyond same-sex marriage itself.
  I wish to read from a letter from Governor Romney sent to me as we 
opened the debate on this issue. In it he warns us that Massachusetts 
is only just beginning to experience the full implication of their 
court's decision. He writes:

       Although the full impact of same-sex marriage may not be 
     measured for decades or generations, we are beginning to see 
     the effects of the new legal logic in Massachusetts just 2 
     years before our State's social experiment.

  In the letter, Governor Romney relates the following account:

       In our schools, children are being taught that there is no 
     difference between the same-sex marriage and traditional 
     marriage.
       Recently, parents of a second grader in one public school 
     complained when they were not notified that their son's 
     teacher would read a fairy tale about same-sex marriage to 
     the class.
       The parents asked for the opportunity to opt their child 
     out of hearing such stories. In response, the school 
     superintendent insisted on ``teaching children about the 
     world they live in, and in Massachusetts same-sex marriage is 
     legal.''

  Now second graders are being indoctrinated to accept a radical 
redefinition of marriage against their parents' wishes. That is the 
reality today in Massachusetts.
  It doesn't stop there. Already religious organizations in 
Massachusetts are feeling the pressure to conform their views as well. 
In March, the Catholic Charities of Boston discontinued their work 
placing foster children in adoptive homes. Why? Because they concluded 
the new same-sex marriage law would require them to place children--
require them--to place children in same-sex homes. Clearly, this is an 
irreconcilable conflict.
  So while we have advocates denying that same-sex marriage poses any 
conflict with religious expression or with traditional views, we are 
already seeing in Massachusetts that simply is not the case. We don't 
know yet the range and the extent of the religious liberty conflicts 
that would arise from the imposition of same-sex marriage laws, but we 
do know the implications are serious, that religious expression will be 
challenged, and that it is a matter of deep public concern. That is why 
we seek action in the Senate on this important issue.
  As I have said before, it is only a matter of time before the 
Constitution will be amended. The only question is by whom. Is it going 
to be a small group of activist judges or by the people through a 
democratic process? I believe the people should make that decision.
  We talked about the specific wording of the marriage protection 
amendment. Nothing in the amendment intrudes on individual privacy. 
Nothing stops States from passing civil union laws or curtails benefits 
that legislatures establish for same-sex couples.
  It simply protects the States from having civil unions imposed on 
them from activist courts. It protects the legislative process by 
letting people speak and vote. It ensures that their voices are heard 
and their votes are respected.
  My own views on marriage are clear. I believe that marriage is the 
union between a man and a woman for the purpose of creating and 
nurturing a family. We know that children do best in a home with a mom 
and a dad. Common sense and overwhelming research tell us so. Marriage 
between one man and one woman does a better job protecting our 
children--better than any other arrangement humankind has devised. I 
believe it is our duty to support this fundamental institution.
  Now we will vote on proceeding on the marriage protection amendment. 
We will vote on whether we believe traditional marriage is worthy of 
protection, and we will vote on whether the courts or the people will 
decide its fate.
  Mr. President, I yield the floor.
  The ACTING PRESIDENT pro tempore. Under the previous order, pursuant 
to rule XXII, the Chair lays before the Senate the pending cloture 
motion, which the clerk will state.
  The bill clerk read as follows:

                             Cloture Motion

       We the undersigned Senators, in accordance with the 
     provisions of rule XXII of the Standing Rules of the Senate, 
     do hereby move to bring to a close debate on the motion to 
     proceed to Calendar No. 435, S.J. Res. 1, a joint resolution 
     proposing an amendment to the Constitution of the United 
     States relating to marriage.

[[Page 10282]]

         Bill Frist, Wayne Allard, Jim Bunning, Conrad Burns, 
           Richard Burr, Tom Coburn, Jon Kyl, Craig Thomas, George 
           Allen, Judd Gregg, Johnny Isakson, David Vitter, John 
           Thune, Mike Crapo, Jeff Sessions, John Ensign, Rick 
           Santorum.

  The ACTING PRESIDENT pro tempore. By unanimous consent, the mandatory 
quorum call has been waived.
  The question is, Is it the sense of the Senate that the debate on the 
motion to proceed to S.J. Res. 1, an amendment to the Constitution of 
the United States related to marriage, shall be brought to a close?
  The yeas and nays are mandatory under the rule. The clerk will call 
the roll.
  The assistant legislative clerk called the roll.
  Mr. McCONNELL. The following Senator was necessarily absent: the 
Senator from Nebraska (Mr. Hagel).
  Mr. DURBIN. I announce that the Senator from Connecticut (Mr. Dodd) 
and the Senator from West Virginia (Mr. Rockefeller) are necessarily 
absent.
  The yeas and nays resulted--yeas 49, nays 48, as follows:

                      [Rollcall Vote No. 163 Leg.]

                                YEAS--49

     Alexander
     Allard
     Allen
     Bennett
     Bond
     Brownback
     Bunning
     Burns
     Burr
     Byrd
     Chambliss
     Coburn
     Cochran
     Coleman
     Cornyn
     Craig
     Crapo
     DeMint
     DeWine
     Dole
     Domenici
     Ensign
     Enzi
     Frist
     Graham
     Grassley
     Hatch
     Hutchison
     Inhofe
     Isakson
     Kyl
     Lott
     Lugar
     Martinez
     McConnell
     Murkowski
     Nelson (NE)
     Roberts
     Santorum
     Sessions
     Shelby
     Smith
     Stevens
     Talent
     Thomas
     Thune
     Vitter
     Voinovich
     Warner

                                NAYS--48

     Akaka
     Baucus
     Bayh
     Biden
     Bingaman
     Boxer
     Cantwell
     Carper
     Chafee
     Clinton
     Collins
     Conrad
     Dayton
     Dorgan
     Durbin
     Feingold
     Feinstein
     Gregg
     Harkin
     Inouye
     Jeffords
     Johnson
     Kennedy
     Kerry
     Kohl
     Landrieu
     Lautenberg
     Leahy
     Levin
     Lieberman
     Lincoln
     McCain
     Menendez
     Mikulski
     Murray
     Nelson (FL)
     Obama
     Pryor
     Reed
     Reid
     Salazar
     Sarbanes
     Schumer
     Snowe
     Specter
     Stabenow
     Sununu
     Wyden

                             NOT VOTING--3

     Dodd
     Hagel
     Rockefeller
  The PRESIDING OFFICER (Mr. Vitter). On this vote, the yeas are 49, 
the nays are 48. Three-fifths of the Senators duly chosen and sworn not 
having voted in the affirmative, the motion is rejected.

                          ____________________