[Congressional Record (Bound Edition), Volume 152 (2006), Part 8]
[Senate]
[Pages 9983-10007]
[From the U.S. Government Publishing Office, www.gpo.gov]




                  UNANIMOUS CONSENT REQUEST--H.R. 4437

  Mr. REID. Mr. President, I ask unanimous consent that the Judiciary 
Committee be discharged from further consideration of H.R. 4437, the 
House immigration bill; that the Senate proceed to its immediate 
consideration; that all after the enacting clause be stricken and that 
the text of S. 2611, as passed by the Senate, be substituted in lieu 
thereof, the bill be read the third time and passed, the motion to 
reconsider be laid upon the table, and the Senate insist on its 
amendment, request a conference with the House, and the chair be 
authorized to appoint conferees.
  Mr. McCONNELL. Mr. President, I object.
  The PRESIDENT pro tempore. The objection is heard.
  Mr. McCONNELL. If I may make an observation, as the Democratic leader 
knows, under the procedure that the Senator requested unanimous consent 
on, it is our understanding that the bill might well be blue slipped. 
We are looking for a way to get the immigration issue to conference in 
a way that will guarantee the conference can go forward. It will be a 
contentious conference, in any event, but to make sure the conference 
can go forward in a way that guarantees we do not get derailed by some 
parliamentary technicality.
  I offer a different unanimous consent. I ask unanimous consent the 
Senate proceed to Calendar No. 326, H.R. 4096; provided further that 
all after the enacting clause be stricken, and the text of the Senate-
passed immigration bill be inserted in lieu thereof.
  Further, that the bill be read the third time and passed, and the 
motion to reconsider be laid upon the table.
  I further ask that the Senate insist on its amendment, request a 
conference with the House, and the chair be authorized to appoint 
conferees.
  Mr. REID. Reserving the right to object, the regular order is to go 
to conference with the House using one or the other legislative 
companion as the vehicle.
  The House acted first, no question about that. I am proposing to go 
to conference with the House using their bill. Some may argue that the 
House will blue slip the bill and return it to the Senate because it 
contains some tax-related provisions. That will be the decision of the 
House. But it does not have to be that case since the Constitution 
states:

       All bills for raising revenue shall originate in the House 
     of Representatives but the Senate may propose or concur with 
     amendments, as on other bills.


[[Page 9984]]


  We will be using their immigration bill, which originated in the 
House. We await their decision.
  Anyone trying to use this blue-slip argument is doing so to avoid a 
conference on the immigration bill.
  Further reserving the right to object, if the Republican leadership 
wants to take up the House-passed tax bill for purposes of moving to a 
conference on the immigration bill, we have amendments we would offer 
to that, and they are all tax matters. The recent tax reconciliation 
bill provided only 1 year of AMT relief; that is, for this year--
presented with the tax bill on the Senate floor. Democrats would want 
to offer amendments to extend relief for at least one additional year 
and perhaps two, so that programs have certainty on the taxes they face 
the next couple years.
  We would also want a number of important popular tax provisions which 
expired at the end of 2005 to be included, including, for example, the 
research and development tax credit, deductibility of the State and 
local estate tax, which is so important to Nevada, tuition tax credit, 
important to people trying to put their children through college, tax 
credits for employers who provide jobs to individuals, and welfare.
  We would also be concerned about what is happening with the estate 
tax. Other tax provisions from the bill also expire at the end of 2010, 
as does the estate tax relief. We would want to make sure the present 
tax relating to estates be continued well past 2010. Also expiring at 
the end of 2010 is a 10-percent bracket that increases child credit and 
marriage penalty relief. That should not be placed behind estate tax.
  We have unnecessary subsidies for big oil, expanding health care 
coverage, and, finally, energy independence. We would offer amendments, 
all tax related, to this proposal that the majority wants to bring to 
the Senate.
  For those and other reasons, I respectfully object to my friend's 
unanimous consent request.
  The PRESIDENT pro tempore. The objection is heard.
  Mr. McCONNELL. I might say to my good friend, the Democratic leader, 
all of the amendments the Senator referred to could be offered to the 
death tax which we expect to be on later in the week.
  The American people did not send us here to try to engage in some 
kind of effort to embarrass the other Chamber. They want us to 
legislate. We spent multiple weeks on the immigration bill. Both the 
Democratic and Republican leaders are aware of who the conferees are. 
It is time to move forward. We should not engage in some kind of 
parliamentary maneuver that is going to be completely lost on the 
American people as they wonder why in the world we did not get about 
the business of having the conference on a very challenging bill, the 
immigration bill.
  By the way, I personally was unaware that the leader was going to 
offer this objection today. I think we ought to talk about it later in 
the afternoon and see if we cannot arrive at some way that is mutually 
agreeable to both sides to go on and get to conference. The Senate has 
acted. The House has acted. It is time to have a conference. I hope we 
can do that sooner rather than later.
  The PRESIDENT pro tempore. The Democratic leader.
  Mr. REID. I agree with the distinguished senior Senator from 
Kentucky. There shouldn't be games played on the immigration bill, but 
let's face facts: 90 percent of the Democrats voted for the bill and--I 
don't know the exact percentage--65 or 70 percent of the Republicans 
voted against the immigration bill; we know 75 to 80 percent of the 
Republicans in the House do not like the immigration bill.
  If there were ever a time to take an immigration bill to conference, 
it would be now; it would be to take immigration bills to conference, 
not tax bills.
  Now, I don't think the bill is blue slippable. I read the 
Constitution, the provision of the Constitution that says tax measures 
must originate in the House. We are willing to take up the House bill.
  I also say that I certainly in no way meant to surprise the 
distinguished leader. We alerted staff we were going to offer this 
unanimous consent request. I am sorry about that.
  Anyway, we have an immigration bill. That is what should be taken to 
conference. That is what we should deal with, the immigration bill. Any 
excuse to get out of taking an immigration bill to conference and 
trying to substitute in its place a tax bill simply is wrong.


                         The State of the World

  Mr. REID. Mr. President, gas prices are over $3 a gallon. Fill-ups at 
the tank, of course, cause emptiness at the bank. This administration, 
the most friendly to oil Presidency in our history, refuses to buck big 
oil with the auto manufacturers. Our citizens are literally choking on 
the lack of alternative fuel. Few incentives for energy created by the 
Sun, the wind or the Earth's geothermal reserves has this 
administration endorsed.
  Raging in Iraq is an intractable war. Our soldiers are fighting 
valiantly. But we have Abu Ghraib and Haditha, for example, where it is 
alleged that 24 more civilians were killed by our own, and no policy 
for winning the peace. However, Secretary Rumsfeld continues in his job 
with the full backing of the President--not a reprimand, not a 
suggestion that his Defense Secretary is at fault; a national debt that 
President Bush won't acknowledge, but our children, their children, and 
their children's children will have to acknowledge with generations of 
debt created by President Bush's economic policies; Federal red ink as 
far as one can see. America is becoming continually more dependent on 
loans from China, Japan, Saudi Arabia, and even England; a world 
changing as we speak as a result of global warming, a condition our 
President does not acknowledge, let alone attempt to reverse.
  Today, more than 46 million Americans have absolutely no health 
insurance. Millions more of our countrymen have inadequate health 
insurance. This administration has come forward with nothing of 
substance to address this national emergency.
  Seniors in Nevada and each of the 50 States are struggling to 
survive. Some physicians refuse to take Medicare patients. The 
President's Medicare prescription drug plan has been a gift to HMOs, 
insurance companies, and drug companies and a nightmare for seniors.
  Education for many of our graduating high school seniors has become a 
goal too far. Student loans and Pell grants are not a priority for the 
Bush administration. The ability to obtain a college education is 
becoming more and more based on how much money your parents have 
instead of how much academic potential our youth have.
  Crime remains a national worry, but money from the Federal Government 
to our States for crime fighting and crime prevention is being 
drastically cut. Successful anticrime programs such as the COPS Program 
are being eliminated by President Bush, much to the consternation of 
police officers across America.
  A trade policy that is continually ruining America's favorable 
balance of payments seems to be the watchword of the Bush 
administration. This trade policy causes America to be less and less 
globally competitive.
  The scientific community cries for help. They believe dread diseases 
such as Alzheimer's, Lou Gehrig's, Parkinson's, and diabetes could be 
moderated and prevented. But President Bush emphatically says no to 
allowing scientists to study and research the healing powers of stem 
cells. He refuses to keep hope alive for the suffering people for our 
great country.
  In spite of the many serious problems we have discussed, what is the 
Senate going to debate this week? A new energy policy? No. Will we 
debate the raging war in Iraq? No. Will we address our staggering 
national debt? No. Will we address the seriousness of global warming? 
No. Will we address the aging of America? No. Will we address America's 
education dilemma? No. Will we address the rising crime statistics? No. 
Will we debate our country's trade imbalance? No. Will we debate stem 
cell research? No. But what we will spend most of the week on is a 
constitutional amendment that will fail by

[[Page 9985]]

a large margin, a constitutional amendment on same-sex marriage. It 
failed to pick up a simple majority when we recently voted on it. 
Remember, an amendment to the Constitution requires 67 votes.
  I believe marriage should be between a man and woman. But I also 
believe in our Federal system of government described to me in college 
as a central whole divided among self-governing parts. Those self-
governing parts, the 50 States, have already, in State after State 
after State, decided on their own and others are deciding it as we 
speak. For example, in Nevada, the constitution was amended to prevent 
same-sex marriage.
  Congress and President Clinton passed a law that gave the States the 
guarantee that their individual laws regarding marriage would be 
respected. The Defense of Marriage Act creates an exception to the full 
faith and credit clause of the Constitution so that no State can force 
its laws of marriage on another. So why are we being directed by the 
President and this Republican majority to debate an amendment to the 
Constitution, a document inspired more than two centuries ago? Why 
would we be asked to change this American masterpiece? Will it next be 
to constitutionally dictate the cause of divorce or military service or 
even what America's religion must be?
  For me, it is clear that the reason for this debate is to divide 
society, to pit one against another. This is another one of the 
President's efforts to frighten, to distort, to distract and confuse 
America. It is this administration's way of avoiding the tough, real 
problems American citizens are confronted with each and every day: high 
gas prices, the war in Iraq, the national debt, health care, senior 
citizens, education, crime, trade policy, stem cell research--each 
issue begging the President's attention, each issue being ignored. The 
valuable time of the Senate will be spent on an issue that today is 
without hope of passing.
  These issues about which I have spoken are not Democratic issues. 
They are not Republican issues. There must be a bipartisan effort to 
address America's ills. I will vote no on the motion to proceed as it 
is not a measure meant to bring America together. Rather, it is an 
effort to cover and conceal issues necessary to make America more 
competitive, caring, considerate, and stronger.
  Together, America can be better and do better.
  The PRESIDING OFFICER (Mr. Alexander). Who seeks recognition?
  Mr. REID. I suggest the absence of a quorum.
  The PRESIDING OFFICER. The clerk will call the roll.
  The assistant legislative clerk proceeded to call the roll.
  Mr. SPECTER. Mr. President, I ask unanimous consent that the order 
for the quorum call be rescinded.
  The PRESIDING OFFICER. Without objection, it is so ordered.
  The Senator from Pennsylvania is recognized.
  Mr. SPECTER. Mr. President, I have sought recognition to oppose S.J. 
Res. 1, known as the marriage amendment. I do believe marriage is a 
sacred institution between a man and a woman. I believe the Congress of 
the United States has acted responsibly on the Defense of Marriage Act. 
In 1996, it passed this body with only 14 dissenting votes. I believe 
that does protect the institution of marriage.
  I believe former Senator Barry Goldwater said it comprehensively and 
succinctly when he said that government ought to be kept off our backs, 
out of our pocketbooks, and out of our bedrooms. This is a matter which 
ought to be left to the States, and the States are taking care of it.
  Nineteen States now have constitutional amendments protecting 
marriage solely between a man and a woman. Twenty-six other States have 
statutes designed to protect traditional marriage by defining marriage 
only as a union between a man and a woman. Five States have no 
statutory or constitutional protection for traditional marriage, only 
five: Massachusetts, New Jersey, New Mexico, New York, and Rhode 
Island. The voters in seven States--Alabama, Idaho, South Carolina, 
South Dakota, Tennessee, Virginia, and Wisconsin--will vote on 
constitutional amendments this year. Another five State legislatures--
Colorado, Indiana, Iowa, Massachusetts, and Pennsylvania--are 
considering sending constitutional amendments to voters in 2006 or 
2008, and ballot initiatives are currently underway in three States--
Arizona, Florida, and Illinois. Six States--California, New Jersey, 
Connecticut, Hawaii, Maine, and Vermont--have adopted a domestic 
partnership or civil union law, each without any mandate from the 
courts, except for in Vermont, where the State supreme court did 
intervene.
  There are many lawsuits pending to work on this issue within the 
context of States' rights. Nine States face lawsuits challenging 
traditional marriage--California, Connecticut, Iowa, Maryland, 
Nebraska, New Jersey, New York, Oklahoma, and Washington. In four of 
those States--California, Maryland, New York, and Washington--trial 
courts have found a right to same-sex marriage in State constitutional 
provisions relating to equal protection and due process, in each case 
relying in part on the Massachusetts decision. State supreme courts 
will decide appeals of those decisions, presumably in 2006 or 2007.
  There are also a number of Federal cases involving this issue. In 
Nebraska, a Federal district court found unconstitutional a State 
constitutional amendment passed by 70 percent of Nebraska voters. The 
U.S. Court of Appeals for the Eighth Circuit heard arguments on the 
State's appeal in February of this year. Federal district court 
challenges to the Federal Defense of Marriage Act are pending in 
Washington and Oklahoma, and cases were previously filed in Florida.
  The Supreme Court of the United States has emphatically and 
repeatedly declared that marriage is a matter for the State courts. The 
Supreme Court recognized ``domestic relations as `an area that has long 
been regarded as a virtually exclusive province of the States''' in 
Zablocki vs. Redhail in 1978.
  In 1859, going back a century and a half, in Barber vs. Barber, the 
Supreme Court of the United States expressly ``disclaim[ed] altogether 
any jurisdiction in the courts of the United States upon the subject of 
divorce. . . .''
  Less than 20 years later, in Penoyer vs. Neff, 1878, the Court 
reaffirmed that the States have the exclusive right to define the 
requirements of marriage and said that ``[t]he State . . . has [the] 
absolute right to prescribe the conditions upon which the marriage 
relation between its own citizens shall be treated, and the causes for 
which it may be dissolved.''
  The matter of marriage is solely within the province of States, as 
are the divorce laws. What would be next if this amendment is passed 
dealing with the States? Rules on child custody cases? Adoption 
regulations? Or probate laws to determine who is entitled to inherit 
property? Like these other issues, this is a quintessential matter for 
State control.
  It is important to note that in the Defense of Marriage Act, there is 
a specific provision that States need not grant full faith and credit. 
The law specifies as follows:

       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 for such relationship.

  So we have the law emphatically set out that the courts have 
consistently held and the Supreme Court of the United States itself for 
more than a century and a half has said that marriage is a matter for 
the States. We know that when Massachusetts or any State acts to the 
contrary, that the action of Massachusetts will not be entitled to full 
faith and credit. We know that there are many lawsuits now litigating 
this matter, so that the relationship of marriage is being adequately 
handled by the States. If it should become necessary for the 
consideration at a later date of a constitutional amendment to be 
considered, there would be ample time to do so.
  It is important to note the avalanche of statements by highly 
respected people in the tradition of what former

[[Page 9986]]

Senator Goldwater said, that we ought to keep the government off our 
backs, out of our pocketbooks, and out of our bedrooms, as a matter of 
privacy and as a matter of tolerance--two very highly placed values in 
our society.
  During the 2000 election campaign, Vice President Cheney had this to 
say:

       The fact of the matter is that we live in a free society, 
     and freedom means freedom for everybody . . . It is really no 
     one else's business in terms of trying to regulate or 
     prohibit behavior in that regard . . . I think states are 
     likely to come to different conclusions, and that's 
     appropriate.

  That was the Vice President.
  The distinguished conservative academic professor James Q. Wilson had 
this to say:

       The states should . . . decide about gay marriages . . . 
     Though I oppose gay marriage, voters in some states may 
     approve it. If they do, we will have a chance to learn what 
     it means in practice, with the costs and benefits falling on 
     people who have accepted it. Moreover, . . . since feelings 
     run high on this matter, it would be a mistake to let it be 
     decided as the right to abortion was decided. If there were 
     the gay marriage equivalent of Roe v. Wade or a 
     constitutional ban on it, we would infect the nation with the 
     divisive anger that followed Roe and our earlier attempt at 
     alcohol prohibition.

  Professor Richard Epstein, University of Chicago Law School, had this 
to say in the Cato Institute's article, ``Live and Let Live'':

       The question is whether ``the majority of the public 
     [should] impose its will on a minority within its midst in 
     the absence of any need for collective decision. The claim 
     for same-sex marriage is no weaker than any other claim of 
     individual rights on personal and religious matters . . . The 
     path to social peace lies in the willingness on all sides to 
     follow a principle of live-and-let-live on deep moral 
     disputes. Defenders of the illiberal Marriage Amendment 
     should look to their churches, not Congress and the states, 
     to maintain the sanctity of the marriage.

  Professor Dale Carpenter at the University of Minnesota Law School, 
publishing in the Cato Institute Policy Analysis, had this to say:

       An amendment banning same-sex marriage is a solution in 
     search of a problem . . . A constitutional amendment defining 
     marriage would be a radical intrusion on the nation's 
     founding commitment to federalism in an area traditionally 
     reserved for state regulation, [that is] family law.
       There has been no showing that federalism has been 
     unworkable in the area of family law.

  Richard Posner, the distinguished Federal judge in the Seventh 
Circuit said the solution for gay marriage ``is to submit it to social 
experimentation. A great advantage of our Federal system is that it 
enables large-scale social experiments.''
  The distinguished columnist, Andrew Sullivan, writing as the 
Columnist for the New Republic on the National Review Online, said the 
marriage amendment ``tramples on any notion of federalism, . . . 
egregiously violates States' rights, and . . . seeks to impose a 
uniform settlement on an entire country in perpetuity. The amendment is 
more typical of the excesses of modern liberalism than anything vaguely 
conservative.''
  George Will of the Washington Post put it succinctly, saying that the 
marriage amendment ``is unwise for two reasons. Constitutionalizing 
social policy is generally a misuse of fundamental law. And it would be 
especially imprudent to end State responsibility for marriage law at a 
moment when we require evidence of the sort that can be generated by 
allowing the States to be laboratories of social policy.''
  Mr. President, I suggest that the evidence and judgments against this 
marriage amendment are powerful and overwhelming in terms of our 
traditional view of tolerance, our traditional view of privacy. The 
fundamental concept of federalism reserves all power to the States and 
the individuals that are not specifically granted to the Federal 
Government. This is especially so in a context like marriage, which is 
a quintessential issue for determination by the States, like adoption, 
like divorce, like child custody, like probate--these are all matters 
for the State.
  I brought this matter to the floor with the calculation that the 
Judiciary Committee ought not to bottle up matters, because the 
Constitution says these issues are to be decided by the Senate and not 
by the Judiciary Committee. We have an unfortunate precedent of the 
Judiciary Committee bottling up legislation, a precedent which the 
Judiciary Committee today will not follow. We will report such matters 
out, even where the individual Members voting may not agree with them. 
That is a view that I have personally held as long ago as 1987 when I 
voted to send Judge Bork's nomination to the Supreme Court to the floor 
of the Senate, even though I strongly objected to his confirmation as a 
Supreme Court Justice. But it seemed to me then, as it seems to me now, 
that the Constitution requires that decision to be made by the full 
Senate.
  In 1957, the Senate Judiciary Committee had no rules. The chairman of 
the committee, James Eastland, wanted to bottle up civil rights 
legislation, and he explained the inactivity of the Judiciary Committee 
as follows:

       Well, a committee that has no rules, the Senate rules 
     govern. The Senate rules provide that to file a cloture 
     petition must be signed by 16 Senators. So we had an 
     unlimited debate in the Judiciary Committee. We had 15 
     members, so there wasn't any way anyone could file a cloture 
     petition.

  Accordingly, the civil rights bill was defeated by filibuster in 
committee.
  After President Eisenhower introduced the bill that later became the 
Civil Rights Act of 1960, it eventually became was clear that Chairman 
Eastland again would not release the civil rights bill from the 
Judiciary Committee. In order to get the bill to the floor, the civil 
rights bill was offered on the Senate floor on February 15, 1960, as an 
amendment to a minor bill concerning the leasing of a surplus U.S. Army 
building to a school district in Missouri. It is curious that the lease 
of a school building in Missouri would be the jurisdictional base for 
the Civil Rights Act.
  In 1964, in order to avoid Chairman Eastland's tactics, the Senate 
voted 54 to 37 to bypass the Judiciary Committee altogether and place 
the House bill directly on the Senate calendar. In the action when the 
Judiciary Committee voted S.J. Res. 1 out of committee last month, my 
distinguished colleague, Senator Leahy, noted that, unless we reported 
the resolution out of Committee, it was going to be brought to the 
floor under rule XIV, which is the leader's prerogative. Senator Leahy 
stated that he felt it preferable that the Judiciary Committee act in 
our traditional way and vote. I thanked him at the time and I thank him 
now.
  My view is that the matters ought not to be bottled up in committee, 
and the precedent cited about Chairman James Eastland, going back 40 
years ago, is ample precedent that matters ought to come to the Senate 
floor.
  It is my hope that this will not be a lengthy debate. We have 
considered this matter before and it carried votes only in the forties, 
far short of the 60 necessary for cloture, and far short of the 67 
necessary to pass a constitutional amendment.
  In the context where we have many pressing and important matters, it 
is my hope that our colleagues will come to the floor, debate the issue 
so that the Senate can work its will and we can proceed to other 
important matters for the United States Senate.
  The chairman of the Constitutional Law Subcommittee, Senator Sam 
Brownback, will be in charge of managing the amendment for those who 
favor. Senator Leahy and I can handle the management for those in 
opposition. I thank the Chair and yield the floor.
  The PRESIDING OFFICER. The Senator from Vermont is recognized.
  Mr. LEAHY. Mr. President, I see the distinguished Senator from 
Colorado in the Chamber. I am about to propound a unanimous consent 
request to help start the lineup of people. Was he looking for a chance 
to speak?
  Mr. ALLARD. Mr. President, yes, I would like the opportunity to 
speak. I would like to start off the debate, as far as Members are 
concerned, if I might. Senator Brownback will be coming in on a later 
flight. I will help manage the floor, if that is OK with the chairman, 
for those in favor until Senator Brownback arrives.
  Mr. SPECTER. If I may comment, I thank the Senator from Colorado. 
That

[[Page 9987]]

would be fine for him to manage until Senator Brownback arrives.
  Mr. LEAHY. Mr. President, I ask unanimous consent that following my 
remarks, the distinguished Senator from Colorado be recognized for 
whatever remarks he wishes to make, and then that Senators Johnson and 
Dorgan be recognized for such comments as they wish to make.
  The PRESIDING OFFICER. Is there objection?
  Without objection, it is so ordered.
  Mr. LEAHY. Mr. President, I wish to speak about the amendment 
presently before us. There has been a lot of speculation in the paper 
about whether this is on the schedule because of partisan politics. Of 
course, it is. The Republican leader has decided that today our 
Nation's most pressing priority is a concern over committed 
relationships between same sex couples. We have very little time left 
in this session that we are devoting to an amendment, which will go 
nowhere, when so many of us are trying to focus on solutions to high 
gas prices, something that hurts people in your State and mine; or the 
rising cost of health care, certainly a matter of great interest in my 
State; the ongoing situation in Iraq, a place where the Bush-Cheney 
administration told us we would be welcomed as liberators and suggested 
we would be out of there quickly. We have now been there almost as long 
as World War II, and the ending to World War II was far more obvious 
than the ending in Iraq; or strengthening our national security. We are 
not going to talk about any of those things. I think that is a 
testament to the misplaced priorities of the Republican leadership. 
News reports have clearly revealed how this proposed constitutional 
amendment is being used to satisfy the most extreme right-wing 
supporters of Republican politicians. I do not believe that Americans 
are well served by this strategy, a strategy that would divide rather 
than unite Americans.
  The Constitution is too important to be used for such a partisan 
political purpose. It is too important to make us dividers and not 
uniters. I agreed with First Lady Laura Bush when she recently told Fox 
News that this proposed amendment should not ``be used as a campaign 
tool, obviously.'' Even so, obviously, that is exactly what Karl Rove 
and others in the Bush-Cheney administration are doing. That is why we 
only vote on such partisan measures in the run-up to an election. 
Apparently, high campaign season has arrived on the Republican leader's 
calendar. Right on the heels of this campaign season bid to amend our 
Constitution, they are readying yet another constitutional amendment 
for the floor.
  Many people have aptly noted that this amendment would write 
discrimination into our Nation's Constitution. I agree. That is exactly 
what we are being asked to spend our time doing this week.
  The Republican leadership's strenuous efforts to move this proposed 
amendment to the Senate floor for debate shows how important it is to 
the Republican leadership of the Senate to cater to the extreme right-
wing and special interest groups agitating for a fight over this issue. 
They intend to stir up an election year fight and use it as a 
``campaign tool'' and a ``political strategy.''
  Right now, we should be addressing America's top priorities, 
including ways to make America safer, the war in Iraq, rising gas 
prices, rising health care and health insurance costs, stem cell 
research, or fixing FEMA, an organization that has fallen into almost 
incomprehensible misuse during this administration, and assisting our 
veterans whose privacy has been compromised by the neglect of the 
administration's Veterans' Administration. Maybe we can talk about the 
reauthorization of the Voting Rights Act, which is something that 
affects every State in this country.
  Instead, the President's political strategists and Senate allies are 
doing their best to divide and distract the American people and the 
Senate from fixing real problems by pressing forward with this 
controversial proposed constitutional amendment.
  As a nation, we are currently facing so many pressing issues, 
including the continuing sectarian violence in Iraq that is spiraling 
out of control, with the United States unable to stop it; the stunning 
investigations of this administration, indictments and convictions for 
government corruption; or a complicated drug program that has been 
dropped into the laps of our seniors. We now find it so complicated 
that it penalizes our seniors. It appears the only ones doing well 
under the program are the pharmaceutical companies. How about a 
burgeoning national debt, where a family of four owes well over 
$100,000 just for the debt run-up by the Bush-Cheney administration? 
Every time I stop at a gas station and fill up my car, all I hear from 
people is: When is the Congress going to do something about these 
historically high gas prices? Of course, the largest theft of private 
information maintained by the Government was stolen under the Bush-
Cheney administration's watch, but we are not asked to debate that 
problem. We even tried to find some corrective legislation to protect 
not only our veterans, but now we find we need to protect tens of 
thousands of Active-Duty personnel from the negligence of this 
administration. We are not asked to do anything to protect those 
veterans. No, we have to talk about this constitutional amendment.
  The Judiciary Committee has been conducting hearings, but we have yet 
to get to the bottom of the Bush-Cheney administration's warrantless 
wiretapping and other programs utilized to gather information on 
Americans, such as the e-mails on the Web sites we visit and even our 
conversations among families.
  We need to make reauthorizing the expiring provisions of the Voting 
Rights Act a priority in the coming months of this season. We still see 
people that are not allowed to vote in this country because of the 
color of their skin. We ought to be doing something to reauthorize the 
Voting Rights Act. If we want to hold ourselves up as a moral mirror to 
the rest of the world, let's talk about things that affect a large part 
of the population of America.
  But no, on the Senate floor, we don't talk about these things, even 
though we are here to protect the rights of Americans--all Americans--
no matter what color they might be. But instead we are being made to 
turn again to a divisive measure that will do nothing to correct the 
weakness in our homeland security, that will do nothing to enact a 
budget the Republican Congress was supposed to, by law, enact months 
ago. We will do nothing to stem the rising gas prices. We will do 
nothing to respond to the most pressing issues facing hard-working 
Americans.
  Some may remember proponents of the Federal marriage amendment in 
2004--coincidentally the last election year--could not assemble a 
majority of Senators to even move to consider the proposed amendment, 
even though the Republicans controlled the Senate. Remember that in 
2004, we were warned immediate action was required to protect the 
fragile institution of marriage, which was said to be under immediate 
threat. Of course, the real threats to marriage include adultery and 
unfaithfulness, desertion, pressures on a marriage that comes from 
economic stresses, unhappiness, and spousal abuse. Does anybody want to 
debate those on this floor? No. Would somebody like to put forward a 
constitutional amendment to tell States they cannot be allowed to have 
divorce laws? No. What about telling States what ages people can marry? 
No. That would be interfering with the rights of States. We will do the 
whole enchilada and tell them we will take over their State 
legislatures.
  Having been told the heavens are falling, we find in the past 2 
years, no States have been forced to recognize same-sex marriages. In 
fact, several States voted to amend their State Constitutions to define 
marriage. The Defense of Marriage Act, which we passed, defines 
marriage as the union between a man and a woman for Federal purposes 
and prevents any States from being forced to recognize another State's 
approval of same-sex marriage.

[[Page 9988]]

That is the law of the land. That bipartisan law has been upheld three 
times in Federal court. It is under no threat of being overturned. So 
when the last election year rolled around, we were told there was a 
crisis, but there never was a crisis then, nor is there now an imminent 
crisis that demands the diversion of Congress's attention from all of 
these other urgent problems or that justifies an alteration of our 
founding document to say that States are no longer the ones in control 
of marriage. We will set a Federal law to tell the States of Tennessee 
and Vermont and every other State, we are taking over. Your 
legislatures can go home.
  But unlike the Republican leadership of this Congress and the Bush-
Cheney administration, I trust our 50 States to define marriage and the 
rules of marriage as they always have. I trust our States a lot more 
than the Republican leadership of this Congress or of the 
administration.
  I am sure we will continue to hear a lot of rhetoric about ``judicial 
activism'' as the reason why we need to dramatically alter the U.S. 
Constitution. Even the President in his weekly radio address invoked 
the notion of ``rogue judges'' that flaunt the law as a justification 
for this drastic measure. This politically convenient criticism is 
surprising. It is surprising, considering the fact that the majority of 
those Federal judges he is so worried about were all appointed by 
Republican Presidents. He doesn't even trust the judges the Republicans 
appointed. In fact, 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 of the nine Justices on the Supreme 
Court were appointed by Republican Presidents. Does anyone believe 
Chief Justice Roberts is going to preside over a U.S. Supreme Court 
that will override the law in this regard? And any State can define 
marriage in their Constitution. When the Republican-controlled Supreme 
Court of Massachusetts ruled that you could have same sex marriage, 
they made it very clear that the State, of course, could amend their 
Constitution to change that.
  In fact, the proposed Federal marriage amendment, now renamed the 
Marriage Protection Amendment, would itself produce a wide range of 
litigation that judges--the very boogeymen that proponents of the 
proposed amendment demonize, would be required to resolve. It would be 
the judges--these judges--these judges that the President and the 
Republican leadership, all of these Republican judges they seem to 
fear, they are the ones who will be forced to resolve the ambiguities 
and meanings of these words if they are added to our Constitution.
  The proposed language we are being required to consider is 
exceedingly confusing and subject to interpretation. It is inevitably 
going to create uncertainty. For example, who would be bound by the 
provisions of the Marriage Protection Amendment? State actors, private 
citizens or religious organizations? What would constitute the legal 
incidents of marriage? Can a legislature pass a civil unions law that 
mirrors its marriage law, so long as they do not call it marriage? Can 
the people of a State put protections for civil unions in their State 
Constitution? What State actors are forbidden from construing their own 
Constitutions? Are we saying that a State supreme court could not 
construe its own Constitution or is it the State executive branch 
officials that couldn't do it as well? We had hearings on these precise 
language questions, and they were not resolved.
  I am particularly concerned about the fate of the Vermont civil 
unions that have been formed under the color of State law. Despite an 
initially wrenching debate, our State law remains on the books after 5 
years. There has been no ensuing crisis in the lives of Vermont 
families. In fact, we have one of the lowest divorce rates in the 
country. But it is not clear to me why this constitutional amendment 
would render Vermont's law invalid.
  I started this afternoon by alluding to my agreement with the recent 
statements of the First Lady that the Constitution should not be used 
for political purposes. I agree with her statement, as I agreed with 
her sense that the President's ``bring it on'' language from the early 
days of the Iraq occupation was not helpful, and certainly was actually 
frightening to families who had somebody serving in the gulf. Starting 
this last weekend we have seen that suddenly the President is involving 
himself in this effort and is now prepared to endorse a specific 
constitutional amendment on this divisive topic. I have written 
President Bush on more than one occasion to ask, OK, if you are going 
to endorse it, what language? What language would you propose?
  In fact, my most recent letter was last month, and I ask unanimous 
consent that a copy be printed in the Record.
  The PRESIDING OFFICER. Without objection, it is so ordered.
  There being no objection, the material was ordered to be printed in 
the Record, as follows:

                                                      U.S. Senate,


                                   Committee on the Judiciary,

                                     Washington, DC, May 22, 2006.
     Hon. George W. Bush,
     The White House,
     Washington, DC.
       Dear Mr. President: The Senate may consider Senate Joint 
     Resolution 1, the so-called ``Marriage Protection 
     Amendment,'' during the week of June 5, 2006. I have written 
     to you on several occasions, most recently on October 27, 
     2005, requesting your views on specific proposals to amend 
     the Constitution to define marriage but you have not 
     responded.
       Two years ago, you publicly acknowledged that ``states 
     ought to be able to have the right to pass laws that enable 
     people to be able to have rights like others.'' The proposed 
     constitutional amendment would prohibit ``the legal 
     incidents'' of marriage from being conferred upon same sex 
     couples. How is that language consistent with your position 
     that states should be able to pass laws giving committed same 
     sex couples the same legal rights as others?
       Many feel that adopting this proposal would amount to 
     ``writing discrimination into the Constitution.'' Do you 
     support amending the United States Constitution with the 
     language of Senate Joint Resolution 1, a copy of which is 
     attached to this letter?
           Respectfully,
                                                    Patrick Leahy,
                                                     U.S. Senator.

  Mr. LEAHY. Not surprisingly, those letters have gone unanswered. In 
fact, the administration didn't even send a representative to any of 
the committee hearings that the Judiciary Committee had on this 
amendment, nor did the administration comment on the specifics of the 
current proposal or respond to questions about its language. The 
general endorsement of the Bush-Cheney administration has been more in 
the nature of a political campaign, more of a signal than of substance. 
We could use a lot more substance up here and a few less signals.
  The President's recent statements on Saturday and at the rally today, 
adjacent to the White House, remain general and vague. After the last 
campaign and his reelection, the President indicated that he had no 
intention of including such an amendment among his administration's top 
priorities. He had no intention of pressing Congress to approve it. 
Suddenly, we are away from that election, we are approaching another 
election. Golly gee whiz, what has changed? What has changed in that 
time? Well, his standing in the public opinion polls, for one; or the 
agitation of the right-wing elements of his base, which he always 
responds to.
  I remember a time when leaving States in control of issues of family 
law was an easy decision for Members of both sides of the aisle to 
make. It is disappointing that Senators would endorse this broadly 
drafted amendment, which so clearly violates the traditions of 
Federalism and local control that many in this body have claimed to 
respect and cherish.
  As prominent conservative and former Congressman Bob Barr put it, 
``Marriage is a quintessential State issue. The Defense of Marriage Act 
goes as far as is necessary in codifying the Federal legal status and 
parameters of marriage. A constitutional amendment is both unnecessary 
and needlessly intrusive and punitive.''
  This reminds me of last year when we were called into emergency 
session after highly competent courts had

[[Page 9989]]

thoroughly reviewed the medical decisions in the Terry Schiavo case. 
They spent months, even years, doing that. But we were called into 
emergency session, and the President flew back from his vacation so we 
could pass in a couple of hours something to overturn all those courts. 
We even had diagnoses made from the floor of the Senate that she was 
not in a vegetative state. This is a family tragedy. We should have 
left it alone instead of grandstanding--grandstanding--on a political 
issue where we are not about to change anything. The American people 
saw through that grandstanding. They realized this is something to be 
left to a family going through a terrible tragedy. As we know, she was 
in a vegetative state; an irreversible vegetative state.
  So I couldn't help but wonder: What has happened to conservatives who 
would oppose the Federal Government's intrusion on the prerogatives of 
the States? Where are those Senators on both sides of the aisle who 
stood up and said: Certain things are reserved to the States and we 
shouldn't intrude? The States have traditionally set the laws of 
marriage. That has been a foundational principle in laws pertaining to 
our families from the beginning of this country. Why this sudden need 
to change that? Oh, I forgot. We have elections this fall, so we have 
to have an electioneering issue. The States determine what age you must 
be in order to marry, whether you have to have your parents' permission 
and so on. The States have done that. They have done it quite well, and 
we ought to let them continue doing it.
  Most States are going to say marriage is between a man and a woman, 
as they always have. My own State of Vermont, because of our 
Constitution, was given a question: Would we support gay marriage in 
Vermont? My State of Vermont said no. Instead, we have civil unions, 
which give gay couples legal rights of inheritance and hospital 
visitation and other prerogatives. We made a pretty sensible decision. 
But in Judiciary Committee hearings, there is strong disagreement that 
this constitutional amendment could override Vermont's very sensible 
decision.
  But even beyond that, beyond any parochial thought, as a Senator, I 
am deeply concerned that this proposal is writing discrimination into 
the Constitution. For the first time--for the first time in our 
Nation's history, we would be amending the Constitution to narrow 
individual rights and to federalize an issue of family law. Well, the 
senior Senator from Vermont is a conservative when it comes to the 
Constitution and to conserving the Constitution.
  How will this measure affect American families who currently exist in 
this country whose members seek the protection of civil unions and the 
acknowledgment of their committed relationships? How will it affect 
child support enforcement or even inheritance and insurance benefits? I 
hope those who claim to care about families will turn away from wedge 
politics and scapegoating and discrimination. Instead, we should join 
together to work on the many pressing issues already piling up on 
Congress's agenda--issues we don't take time for, such as health care, 
gas prices, pensions, Iraq, paying for college education, and raising 
the minimum wage. Are we so afraid to tackle these real issues which 
affect all Americans, that we can only attempt to bring up issues that 
can be used in this fall's elections?
  Last month, President Bush spoke eloquently about this country and 
our values when he spoke about immigration, and I praised the President 
for his speech. He emphasized something I wish this White House and the 
Republican leadership in the Congress would keep in mind in connection 
with their efforts to demonize gay and lesbian Americans. The President 
said:

       We cannot build a unified country by inciting people to 
     anger, or playing on anyone's fears or exploiting the issue 
     of--

  And here I insert ``marriage'' for ``immigration''--

     for political gain.

  President Bush continued by saying:

       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 agree. My religion taught that, and I believe that every human 
being has dignity and value. Mean-spirited rhetoric does not serve this 
Nation or its diverse population. Our Nation would be better served if 
we refrained from divisiveness that is wielded like a weapon in order 
to score political and emotional points before an election.
  As an American who has been married 44 years, I am a great fan of the 
institution of marriage. I believe it is important to encourage and to 
sanction committed relationships, and I respect the people of my State 
for the careful manner in which they resolved this matter by 
recognizing civil unions. They recognized, as my predecessor, the 
senior Senator from Vermont, Robert Stafford, a wonderful 
quintessential New England Republican, did when he spoke of well over 
60 years of marriage. He spoke about how the love of his wonderful wife 
Helen, made him a better person, and how their committed relationship 
made him better.
  Lower the rhetoric. Those who want to score points for this fall are 
denigrating people of committed relationships. Senator Stafford was 
right when he said that people who love make each other better people. 
Don't we all benefit from that? We have in Vermont. I know I would not 
have accomplished any of the things I have accomplished in life without 
the strong support and love of my wife, Marcelle. We have done this for 
44 years.
  Let's look inward, each of us, to ourselves. Let's make sure we are 
living our lives the way we should before we tell the rest of the 
country how to live theirs. And let's be real--the actions in Vermont 
do nothing to diminish or threaten marriages in Vermont or any other 
State.
  For these reasons, I will continue to oppose measures such as this 
proposed constitutional amendment. I continue to urge that we solve the 
problems facing this Nation and stop the political pandering for this 
fall's elections. Let's get on and do something real. Let each of us be 
a person who is not going to try to control the lives of everyone else 
in this country. The distinguished chairman quoted Senator Goldwater in 
that respect. He was right. The Senate is wrong.
  I yield the floor.
  The PRESIDING OFFICER. The Senator from Colorado is recognized.
  Mr. ALLARD. I thank the Chair. I ask unanimous consent that our 
speaking sequence be alternated between those who speak in favor of the 
amendment and those who speak against the amendment.
  The PRESIDING OFFICER. Is there objection?
  Mr. LEAHY. Reserving the right to object, and I don't want to, does 
the Senator have the name of who is going to go between Senator Johnson 
and Senator Dorgan?
  Mr. ALLARD. No, I don't. We have already agreed to it. I don't want 
to amend that. I think we would plan to meet that.
  Mr. LEAHY. Following that.
  Mr. ALLARD. I was going to say following those, we can alternate back 
and forth.
  Mr. LEAHY. Mr. President, this is the way we normally have done it. I 
think it works best. The Senator from Colorado certainly is respecting 
that tradition, and I would agree with it.
  The PRESIDING OFFICER (Mr. Sununu). Without objection, it is so 
ordered.
  Mr. ALLARD. I thank the Senator from Vermont.
  Mr. President, I rise today to start what I hope will be a 
constructive debate on my amendment, S.J. Res. 1, known as the marriage 
protection amendment. I think at this point in the debate it is 
important that we carefully review what is said in the amendment and 
what the intent of the amendment is. It reads:

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

  That is the first sentence. The second sentence says:

       Neither this Constitution, nor the Constitution of any 
     State, shall be construed to require that marriage or the 
     legal incidents thereof be conferred upon any union other 
     than the union of a man and a woman.


[[Page 9990]]


  Now, what does that mean. Let's break it down. And that is what this 
chart does that I have before us. It says simply that we are going to 
have a uniting, uniform definition of marriage throughout the United 
States. And then the second sentence, it guarantees that the courts 
cannot force States or the Federal Government to grant any of the 
rights, benefits, or other incidents of marriage to any union other 
than that of a man and woman. Legislatures and the people will continue 
to have the power to grant whatever rights or benefits they choose 
through the democratic process.
  Definition of marriage: This first sentence prohibits courts and 
legislatures from changing the definition of marriage. The second 
sentence further prohibits the courts from creating civil unions or 
domestic partnerships or granting the right or benefits of marriage. 
But it doesn't interfere with private contracts between a business or a 
private entity of some type.
  The legislatures can do the following things. They can create civil 
unions or domestic partnerships. They can grant the rights and benefits 
of marriage--the second sentence of this amendment--and again it 
doesn't affect employment benefits offered by private businesses. What 
we are trying to protect is the State legislatures from having their 
legislation and the people's legislation within their State overturned 
by an unelected branch of Government, the courts.
  Before making my formal comments and going any further, I would like 
to express my sincere gratitude to my colleagues who have cosponsored 
this amendment. It has taken countless hours of study and discussion to 
get to this point, and each of our 31 cosponsors has shown courage and 
commitment to protecting marriage.
  I would also like to express my appreciation to the majority leader 
for his commitment and leadership. Without the support of the Senate 
leadership, the public may never have had an opportunity to address 
this vitally important issue in a democratic body.
  I would also like to express my appreciation to the chairman of the 
Judiciary Committee, Senator Specter, who has ably reported it out of 
the committee to the floor for debate.
  Marriage, the union between a man and a woman, has been the 
foundation of every civilization in human history. The definition of 
marriage crosses all bounds of race, religion, culture, political 
party, ideology, and ethnicity. Marriage is embraced and intuitively 
understood to be what it is. Marriage is a union between a man and a 
woman.
  As an expression of this cultural value, the definition of marriage 
is incorporated into the very fabric of civil policy. It is the root 
from which families and communities are grown. Marriage is one bond on 
which all other bonds are built.
  Marriage is not some controversial ideology being forced upon an 
unwilling population by the Government. It is, in fact, the opposite. 
Marriage is the ideal held by the people, and the Government has long 
reflected this. The broadly embraced union of a woman and a man is 
understood to be the ideal union from which people live and children 
best blossom and thrive.
  As we have heard in hours of testimony, in eight hearings, in 
numerous Senate committees over the last several years, marriage is a 
pretty good thing. A good marriage facilitates a more stable community, 
allows kids to grow up with fewer difficulties, increases the lifespan 
and quality of life of those involved, reduces the likelihood of 
incidences of chemical abuse and violent crime, and contributes to the 
overall health of the family. It is no wonder so many single adults 
long to be married, to raise kids, and to have families.
  Today, there are numerous efforts to redefine marriage to be 
something that it is not. Marriage is and it always has been a union 
between a man and a woman.
  I believe the Framers of the Constitution felt that this would never 
be an issue, and if they had, it would have been included in the U.S. 
Constitution. Like the vast majority of Americans, it would have never 
occurred to me that the definition of marriage or marriage itself would 
be the source of controversy. Not too long ago, it would have been 
wholly inconceivable that this definition, this institution of marriage 
would be challenged, redefined, or attacked. But here we are today 
because of it. Make no mistake about it, traditional marriage is under 
assault. I say assault because the move to redefine marriage has taken 
place not through the democratic process such as State legislatures and 
the Congress or ballot issues around the Nation; this assault has taken 
place in our courts and often in direct conflict with the will of the 
people, State statutes, Federal statutes, and even State constitutions.
  Activists and lawyers have devised a strategy to use the courts to 
redefine marriage. This strategy is a clear effort to override public 
opinion and the longstanding composition of traditional marriage and to 
force same-sex marriage on society.
  Over the course of the last 15 years, traditional marriage laws have 
been challenged in courts across the Nation. Alaska, Arizona, 
California, Connecticut, Florida, Hawaii, Indiana, Iowa, Maryland, 
Massachusetts, Montana, Nebraska, New Jersey, New Mexico, New York, 
North Carolina, Oklahoma, Oregon, Vermont, Washington, and West 
Virginia have all seen traditional marriage challenged in court.
  As we speak, nine States face lawsuits challenging traditional 
marriage laws--California, Connecticut, Iowa, Maryland, Nebraska, New 
Jersey, New York, Oklahoma, and Washington. Marriage is under attack 
all across the country. If it hasn't already, an attack on marriage is 
coming to a State near you.
  The first success in the activists' coordinated legal strategy was in 
Vermont in 1999. The Vermont Supreme Court ruled that all the rights 
and benefits of civil marriage must be extended to same sex couples. 
Under threat of court-imposed same sex marriage, the Vermont 
legislature created same-sex ``civil unions.''
  The second, and to date the most widely covered success in the effort 
to destroy traditional marriage, came more recently in the state of 
Massachusetts where four judges ruled in the Goodridge case that 
marriage itself must be redefined to include same-sex couples, and that 
traditional marriage laws were a ``stain'' on the State constitution 
that must be ``eradicated.'' This edict came despite the fact that the 
populace of Massachusetts opposed this redefinition of marriage and 
despite the fact that no law had ever been democratically passed to 
authorize such a radical shift in public policy.
  Proponents of same-sex marriage have shopped carefully for the right 
venues, exploited the legal system, and today stand ready to overturn 
any and all democratically crafted Federal or State statute that would 
stand between them and a new definition of humanity's oldest 
institution.
  The question of process is very important in this debate--it is in 
fact the very heart of this debate. While recent court decisions handed 
down by activist judges may not respect the traditional definition of 
marriage, these decisions also highlight a lack of respect for the 
democratic process. No State legislature has passed legislation to 
redefine the Institution of marriage--not one. Any redefinition of 
marriage has been driven entirely by the body of government that 
remains unaccountable and unelected--the courts.
  Some of my colleagues do not feel we should be talking about marriage 
in the Senate. I say we must. Our Government is a three branch 
government. The Congress is the branch that represents the people most 
directly. We have a duty to, at the very least, discuss the state of 
marriage in America. If we do not take this up, we abdicate our 
responsibility. We will allow the courts sole dominion on the state and 
future of marriage. This Senate, the world's most deliberative body, 
must provide a democratic response to the courts.
  Legislatures across the country have joined the Congress in recent 
years in affirming a 1996 law called the Defense of Marriage Act, or 
DOMA. DOMA is a limited law designed to address two distinct issue: No. 
1, forced interstate

[[Page 9991]]

recognition, and No. 2, the definition of marriage for the purposes 
Federal law. This bipartisan legislation passed with the support of 
more than three-quarters of the House of Representatives and with the 
support of 85 Senators before being signed into law by then President 
Bill Clinton.
  To date, 45 States have also passed laws to protect traditional 
marriage, including 19 States that have constitutional amendments 
protecting traditional marriage as solely between a man and a woman. 
Voters in seven States--Alabama, Idaho, South Carolina, South Dakota, 
Tennessee, Virginia, and Wisconsin--will vote on constitutional 
amendments this year. Another five State legislatures--Colorado, 
Indiana, Iowa, Massachusetts, and Pennsylvania--are considering sending 
constitutional amendments to voters in 2006 or 2008, and ballot 
initiatives are currently underway in Arizona, Florida, and Illinois.
  These state DOMAs and constitutional amendments, combined with 
Federal DOMA, should have settled the question as to the democratic 
expression of the will of the American public. However, Federal and 
State DOMAs, as well as State constitutional amendments--all reflecting 
the will of the people--are being challenged in the courts.
  The Federal DOMA is itself under attack. Activists have challenged 
DOMA's interstate recognition provision in the Ninth Circuit. The 
second part of DOMA, the part defining marriage for Federal purposes, 
was also challenged in the Ninth Circuit, as well as in Federal cases 
pending in Oklahoma and Washington State. Plaintiffs in each case argue 
that the U.S. Constitution's equal protection and due process clauses 
require the recognition of same-sex marriages, and that efforts to 
limit marriage to the union of a man and a woman for purposes of 
federal law are unconstitutional.
  Because DOMA only clarifies that the Constitution's Full Faith and 
Credit clause should not be read to require interstate recognition, 
DOMA will not prevent an activist judge from finding that the equal 
protection or due process clauses require it. In other words, DOMA does 
not prevent any court from recognizing out-of-State marriages; it 
merely removes one of several rationales that a court could use to do 
so. DOMA is not, nor was it designed to be, a comprehensive solution to 
judicial activism on same-sex marriage.
  Likewise, State constitutional amendments are under attack in Federal 
court. For example, in Nebraska, a Federal district court in 2005 found 
unconstitutional a State constitutional amendment passed by 70 percent 
of Nebraska voters. While this cases is on appeal to the Eight 
Circuit--and we hope the decision will be correctly overturned--I find 
it chilling that the will of an entire State, expressed democratically, 
may be undone by a Federal judge in an unelected position and tenured 
for life.
  State constitutional amendments are also under attack in State court. 
Just last month, a Georgia judge found unconstitutional a State 
constitutional marriage amendment that was approved by 76 percent of 
the voters. Immediately after it was passed by an overwhelming majority 
of voters in 2004, activists launched an attack in the courts. The 
result--the amendment being thrown out on procedural grounds--is yet 
another success for the handful of activists seeking to suppress the 
will of the people through the courts.
  The national effort to redefine marriage has also been buoyed by 
decisions made by the U.S. Supreme Court. In June 2003, the Court 
inferred that a right to same-sex marriage could be found in the U.S. 
Constitution in Lawrence v. Texas. A variety of experts, including 
Justice Scalia and Harvard Professor Lawrence Tribe, forecast that this 
decision points to the end of traditional marriage laws--including 
Federal and State DOMAs. The Massachusetts court relied heavily on the 
Lawrence decision to strike down that State's traditional marriage law 
in the Goodridge case.
  When Goodridge took effect in May of 2004, same-sex couples became 
entitled to Massachusetts marriage licenses. In anticipation of 
Goodridge, a handful of local officials in New York, California, and 
Oregon began issuing licenses to same sex couples in February and 
March. To date, through the combined efforts of lawless local officials 
and those licenses issued in Massachusetts, couples from at least 46 
States have received licenses in those jurisdictions and returned to 
their home States. These 46-plus States are state and Federal DOMA 
challenges just waiting happen.
  More of these cases are expected and we will be left with an 
unworkable patchwork marriage laws, crafted by judges and forced on to 
on State from another, outside the democratic process, regardless of 
the will of the voters.
  As a result of this coordinated campaign to redefine marriage through 
the courts, we stand here today, compelled by respect for the 
democratic process, to publicly debate an amendment to the U.S. 
Constitution. Again, this amendment simply 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 first sentence is straightforward: it defines marriage as an 
institution solely between one man and one woman--just as it has been 
defined for thousands of years in hundreds of cultures around the 
world.
  The second sentence simply ensures that the people or their elected 
representatives, not judges, can decide whether to confer the legal 
incidents of marriage on people. Citizens remain free to act through 
their legislatures to bestow whatever benefits to same-sex couples that 
they choose. It is aimed squarely at the problem of judicial activism.
  Just as important as what it does do, is what it does not do. I have 
said it time and time again and I say here again today for the record--
the amendment does not seek to prohibit, in any way, the lawful, 
democratic creation of civil unions or domestic partnerships. It does 
not prohibit private employers from offering benefits to same-sex 
couples. It denies no existing rights.
  What our amendment does is to define and protect traditional marriage 
at the highest level--the U.S. Constitution. Importantly, the 
consideration of this amendment in the Senate represents the discussion 
of marriage in America in a democratic body of elected official. I am 
not willing to surrender this issue to the courts.
  I also feel it is important to make clear that on the question of 
federalism and States' rights I stand where I always have. While an 
indisputable definition of marriage will be a part of our Constitution, 
all other questions will be left to the State.
  Gregory Coleman, former solicitor general of the State of Texas 
testified before the Senate Judiciary Subcommittee on the Constitution 
and made the following statement on this matter:

       Some have objected to a proposed constitutional amendment 
     on federalism grounds. These concerns are misplaced. The 
     relationship between the States and the Federal government is 
     defined by the Constitution and a fortiori, a constitutional 
     amendment cannot violate principles of federalism and State's 
     rights. A Federal constitutional amendment is perhaps the 
     most democratic of all processes--because it requires 
     ratification by three-fourths of the States--and simply does 
     not raise federalism concerns. The real danger of State's 
     rights comes from the recognition of un-enumerated 
     constitutional rights in which the States have had no 
     participation.

  I share those sentiments and cannot express them any more clearly. We 
stand today at the threshold of the most democratic, most federalist 
process in all our Government. As designed by the Framers of the U.S. 
Constitution, the amendment process is neither an exclusive Federal nor 
an exclusively State action: It is a shared responsibility of both.
  Contrary to assertions of those who believe my amendment infringes on 
the rights of the States my amendment actually protects States' rights. 
Forty-five States have spoken with laws or constitutional amendments 
designed to

[[Page 9992]]

protect traditional marriage. Unfortunately, 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.
  Now is the time for Congress to fulfill its responsibility and send a 
constitutional amendment to the States.
  Marriage, the union between a man and a woman, has been the 
foundation of every civilization in human history. This definition of 
marriage crosses all bounds of race, religion, culture, political 
party, ideology and ethnicity. It is not about politics or 
discrimination, it is about marriage and democracy.
  Unfortunately, the U.S. Constitution is being amended to reflect a 
new definition of marriage--not by democratically elected Members of 
Congress but by unaccountable and unelected judges. If we fail to 
define marriage, the courts will not hesitate to do it for us.
  I, for one, believe that 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 supporting the Marriage Protection 
Amendment.
  I yield the floor.
  The PRESIDING OFFICER. Under the previous order, the Senator from 
South Dakota is recognized.
  Mr. JOHNSON. Mr. President, I find it simply astonishing that with 
the very limited time we have remaining in this congressional session 
this Senate finds itself failing to spend its time debating education, 
affordable health care, veterans, gas and energy prices, job creation, 
or the exploding Federal budget deficit and instead, as part of what 
can only be viewed as an extraordinarily cynical political charade, we 
will devote our time to debate the marriage protection amendment, an 
amendment to our national Constitution that has been overwhelmingly 
defeated in the past and which continues to be opposed from groups 
ranging from liberal to the far right libertarian, as well as by 
religious organizations, including my own ELCA Lutheran Church.
  Could it be that there are those who do not want to talk about the 
real issues facing American families because their inaction has 
resulted in collapsing poll numbers and declining public support and 
they now feel a desperate need to change the subject?
  The lengths that some people will go to pander on this issue is, 
frankly, shameful. There are ads currently running in my State claiming 
that I must not care about children having a mother and a father. How 
foolish. How sad. My wife Barbara, a social worker, and I will 
celebrate our 37th wedding anniversary tomorrow. We have three 
wonderful children and three beloved young grandchildren. Barbara and I 
are both former Sunday school teachers, and we have each in our own way 
devoted our careers to public service which advances the interests of 
families and particularly of children--and decent wages and farm 
incomes, affordable health care, affordable housing, high quality and 
affordable education, a truly profamily Tax Code, opposition to budget 
deficits which will have to be paid by our children and our 
grandchildren, advancing the cause of adoptions, advancing the programs 
which serve the needs of low-income expectant mothers and their early 
childhood needs. Ironically, these are all efforts which have largely 
been opposed by those who today tout the need for a marriage protection 
amendment.
  How cynical is that?
  I oppose gay marriage--and I voted in favor of the Defense of 
Marriage Act enacted years ago by this Congress. But marriage law in 
its details have been left to the respective States since the very 
beginning of our Nation, and there is no need today to speculate about 
what future courts may or may not do. There is no need today to strip 
these rights away from the States and to deny States the right even to 
interpret their own constitutions.
  My State of South Dakota has already enacted antigay marriage law and 
has taken up a possible State constitutional amendment to that effect. 
But that is where the debate ought to take place--in South Dakota and 
other States, not here in DC.
  I must add that this debate reminds me somewhat of an old children's 
fable where a child noted that the emperor has no clothes when all the 
adults around him were reluctant to similarly point out the obvious.
  Very frankly, the sanctity of my 37-year marriage is less at risk 
from gays than from ordinary heterosexuals who are behind high divorce 
rates, domestic abuse, and irresponsible refusal to provide for child 
support. Gay individuals seeking some legal structure in which to 
maintain a stable and loving relationship as opposed to promiscuity is 
less of a threat to my wife and I than public policy out of this 
Congress which works against the real needs of South Dakota families--
involving decent wages, childcare, health insurance, and affordable 
housing.
  How wonderful would it be if we were here today talking about 
strategies that could strengthen our families and our communities, that 
would focus on the real needs of children rather than using them as a 
pawn in a cynical election-year charade.
  The American Constitution ought to be rarely amended--as all the 
generations of American leaders who served in this body understood. 
When it is amended, it ought to expand opportunity and freedom, and it 
ought to be consistent with being profamily in a real and serious way. 
There is a place for debate over gay marriage, but in South Dakota that 
debate ought to take place in Pierre and through public debate on the 
State constitution. All roads should not lead to Washington, DC.
  This Senate should once again resoundingly and in a thoughtful, 
bipartisan manner reject the pending amendment to our Nation's most 
sacred civil document, our United States Constitution.
  I yield the floor.
  The PRESIDING OFFICER. The Senator from Kansas.
  Mr. BROWNBACK. Mr. President, I understand there is a previous 
agreement that Senator Durbin was to speak at this point in time.
  The PRESIDING OFFICER. Under the previous order, Senator Dorgan was 
to be recognized.
  Mr. BROWNBACK. Mr. President, I will yield the floor when he arrives 
at a timely point. I want to get started on this debate. Time is short 
and the issues are important.
  I rise to speak in favor of the Marriage Protection Amendment. I 
chair the Constitution Subcommittee from which it came through. I am 
also on the Judiciary Committee from which it came through.
  This is a critically important topic. It is about, fundamentally, two 
issues.
  No. 1, it is about who is going to define marriage in America--not 
whether marriage is going to be defined. It is about who is going to 
define marriage in America. Is it going to be defined by the courts 
that have started this debate or is it going to be defined by 
legislatures and legislative bodies across the country?
  That is No. 1.
  No. 2, and at the very center of this, is how we will raise our next 
generation of children.
  That is fundamental to this debate--how we raise that next generation 
of children. We are going to talk a lot about that.
  I have a number of statistics that we are going to share. It hinges 
on what happens in that first debate. Who is going to define it? 
Defined by the legislature? Defined by the Judiciary? And No. 2, what 
happens to the children? It was the central question of Senator 
Moynihan while he was in this body before he passed away, that we 
should always be concerned about centrally how you raise that next 
generation of Americans. That is a core, that is a principle, that is 
something you always have to keep your eye on, and that hinges in this 
debate.
  I see my colleague from North Dakota on the floor who has recognition 
under the previous agreement.
  I yield the floor.
  The PRESIDING OFFICER. Under the previous order, the Senator from 
North Dakota is recognized.

[[Page 9993]]


  Mr. DORGAN. Mr. President, I thank my colleague from Kansas, Senator 
Brownback.
  Mr. President, we come on a Monday to the floor of the Senate to 
discuss public policy and important issues. And today the majority 
leader has brought to us a proposed constitutional amendment. It is the 
first of what I believe will be two constitutional amendments that will 
be considered by the Senate for the next 7 or 10 days. That is not 
unusual. In fact, I had someone go back and check to see how many 
proposed amendments to the United States Constitution have been offered 
here on the floor of the Senate or in the U.S. House, or at least 
offered in bill forms. I discovered that in recent Congresses that 
there were I believe something like 76 proposed amendments to the 
Constitution. In another year, there were 67 proposed amendments to the 
U.S. Constitution.
  The Constitution has not been amended except for the first 10 
amendments which were the Bill of Rights. Outside of the Bill of 
Rights, the Constitution has been amended 17 times in nearly 220 
years--17 times in more than two centuries.
  The reason for that is most people believe that we ought to amend the 
Constitution only rarely, and then only when it is urgently necessary 
and only when it is the last resort. We have had a lot of different 
proposals to change the Constitution. There was a proposal to change 
the Constitution to provide that the Presidents of the United States 
for one term shall come from the North and then shall be succeeded by a 
President who comes from the South. That was a proposed amendment to 
the U.S. Constitution.
  Fortunately, for our country, not many of these ideas over all of 
these many, many years have been adopted by the U.S. Congress and by 
State legislatures, which is required in order to amend the U.S. 
Constitution.
  The Constitution for this country was written by 55 white men. It was 
in a room in Philadelphia. In that room in Philadelphia, if you go to 
visit today, you will see the chair that George Washington sat in at 
the front of the room. George Washington chaired the Constitutional 
Convention. You will see where Ben Franklin sat, where Madison sat, 
where Mason sat. Those 55 men wrote a Constitution in a hot 
Philadelphia summer period and presented it then to the country. It was 
really a quite remarkable Constitution. It begins: ``We the People.''
  In the writing of the Constitution, they created a framework for this 
new kind of government which has become over the last two centuries the 
most successful democracy or representative government in the history 
of humankind. We have lived only a blink of that history. And, yet, 
during that period this is the most successful democracy on the face of 
the Earth.
  Two-hundred years after the writing of the Constitution, there was a 
celebration in that same room. I was one of the fortunate ones to go to 
that celebration representing one of the 55. These 55 people were men 
and women and minorities. It wasn't 55 men as existed in that room when 
they wrote the Constitution. The 55 people who celebrated in that room 
the 200th birthday of the Constitution--it was really quite a 
remarkable event. I sat in that room thinking about the history, 
thinking about George Washington sitting at the front in that chair 
with the piece of wood that is decorated as the sun on the back of that 
chair.
  I thought to myself: What a remarkable thing it was for me, coming 
from a town of 300 people, from ranching and wheat country in 
southwestern North Dakota, from a high school with a senior class of 
nine students, and here I am sitting in the room where George 
Washington presided over the writing of the Constitution for this new 
country of ours.
  I tell that story only because it is important for us to understand 
the circumstances of amending the Constitution.
  Today, we have on the floor of the Senate a proposal to amend the 
Constitution with a constitutional amendment that would prohibit gay 
marriage.
  Next week, we will have a constitutional amendment that would prevent 
desecrating the American flag or give the States the ability to prevent 
flag desecration.
  On the issue of gay marriage, I voted as a Member of the U.S. Senate 
for a 1996 act called the Defense of Marriage Act. I did that because 
it creates for Federal law a definition of what marriage is. It defines 
marriage as a union between a man and a woman, husband and wife. That 
is Federal law. I supported that. I was happy to support that. That is 
what I believe.
  I don't believe we should be altering the U.S. Constitution. I don't 
believe we should be amending the basic framework of our democracy on 
this subject. The current law, the Defense of Marriage Act, which the 
Federal Government passed in 1996, still stands today.
  I see no reason to amend the U.S. Constitution.
  This past week in my State an organization called Focus on the Family 
ran a newspaper advertisement taking up the large part of a page in 
daily newspapers. It says: Senator Dorgan does not believe that a child 
needs both a father and a mother.
  They also ran the same language in radio ads in my State.
  Now this organization--I am not familiar with them--must think there 
are 9 commandments. There are actually 10 commandments. This must be an 
organization that has forgotten the commandment that says: Thou shall 
not bear false witness. My hope is they might go back and review that. 
There is nothing in my record that suggests I don't care whether a 
child has a mother and a father.
  This is a legitimate discussion we are having about a constitutional 
amendment. The issue of gay marriage is an important and legitimate 
issue to discuss. But one would think it is also worthy of 
organizations on both sides to be truthful in that discussion. That, 
regrettably, at least in this case that I have cited, has not been the 
case.
  This issue of amending the U.S. Constitution is clearly before the 
Senate because it is an even-numbered year. The even-numbered year is 
one in which the late Claude Pepper used to say the American people 
have the miracle of grabbing the American steering wheel and deciding 
which direction they want to nudge our great country. It is, after all, 
the American people who are in charge and the American people who will 
make decisions about the direction of our country.
  This is an even-numbered year. We understand why this issue is before 
the Senate. It is about an election this fall. I am not saying it is an 
unimportant issue; I am saying that the notion of having to amend the 
basic framework of our government, amending the Constitution, that is a 
political debate aimed at this fall, not this week.
  But let me talk just for a moment not about the issue of gay 
marriage. We have addressed that. I supported addressing it in the 
Defense of Marriage Act. I voted for the Defense of Marriage Act, voted 
for a definition that a marriage is between a husband and wife, a man 
and woman. That has already been done.
  So let me talk about what we could be doing today and tomorrow and in 
the next week and a half or 2 weeks instead of the agenda given us by 
the majority leader. There are some people pretty dispirited about this 
Congress. Because the polling says this Congress is not very well 
thought of, we conclude the American people are kind of dispirited 
about the agenda, about what we are doing. We have a lot of trouble.
  We have federal debt up to our neck, and there is more to come. The 
President is offering us budgets with the largest deficit proposals in 
history--this from a President who described himself as a conservative. 
But that is not what his budgets are about.
  We have the highest trade debt in annual deficits in the history of 
this country, dangerous trade deficits, $702 billion last year. Add the 
increase to the national debt from a budget standpoint to the trade 
debt, and we are $1.4 trillion out of balance. Let me say that again: 
We are out of balance $1.4 trillion in a year. Does anyone seem to care 
about that? Is there the urgency

[[Page 9994]]

to deal with that as we have for constitutional amendments? I don't 
think so.
  Fiscal policy, trade policy, foreign policy--we have serious foreign 
policy issues and problems. Health care: add up the challenges we face 
and ask yourself: What are we doing about these challenges? Do we have 
these issues on the floor of the Senate? Not that I can see.
  It won't be very long--in fact, it is happening now--that we have 
people who are now paying for prescription drug coverage, a monthly 
premium, but who no longer get prescription drug coverage because of 
what has been legislatively defined as a doughnut hole. In other words, 
they lose coverage for a significant period of time, but they should 
still pay the premiums. Maybe we should have that on the floor of the 
Senate and fix that.
  We could fix that easily. There is a study that shows we could fix 
that by simply removing the perverse provision in that act that 
prohibits the Federal Government from negotiating lower drug prices 
with the pharmaceutical industry. We could fix that so-called doughnut 
hole, or fix the problem of people having no health care prescription 
drug coverage through Medicare at the same time they are required every 
month to pay premiums. Would that be an advisable thing to do? I think 
it would.
  We are going to also be debating the death tax. I heard on the 
opening portion of the Senate that the death tax is going to be 
repealed. It may be a surprise to those who are still alive, but there 
is no death tax. There is no death tax. The term ``death tax'' is a 
creation of a pollster who took this nugget of a creation, took it to a 
political party and said: I have something really interesting, and it 
polls off the charts. Tell people there is a death tax and come out for 
its repeal.
  There is no death tax. There is a tax on inherited wealth. When the 
husband or wife dies, the other spouse owns everything with no tax 
consequences at all. There is a 100-percent exemption. So for the first 
spouse there must be a universal exemption. In addition to that, there 
is now a $2 million exemption on an estate for one spouse. In addition 
to that, the majority party says it is urgent that we get rid of the 
so-called death tax, the bulk of which would help those who are the 
wealthiest Americans.
  So if Donald Trump--just to use a name because he likes having his 
name used on everything--if Donald Trump were to die, God forbid, at 
some point when he dies, a substantial portion of his estate will have 
been created through the appreciation of his assets--and has not been 
taxed. The same would be true of most of the richest Americans.
  The second richest American is Warren Buffett, quite a remarkable man 
from Omaha, NE. He is really special. He says: Look, if there is a 
class war going on, my class is winning--speaking of the wealthiest. He 
doesn't believe there should be a provision brought to the Senate to 
get rid of the estate tax. He does not believe that is fair. He does 
not believe it is the right thing to do.
  But we are up to our necks in debt, we have massive fiscal policy 
budget deficits, the highest trade deficits in history, and what is the 
priority? The majority party, we were told this afternoon, the priority 
is we have to get to the Senate a provision to provide very significant 
tax cuts for the wealthiest Americans. Unbelievable.
  Someone from the outside would look at that and ask: Is this a joke? 
Are you really serious as legislators? No wonder people take a look at 
this Congress and say: What are you thinking about? What on Earth do 
you have on your minds?
  I talk about the dispirited feelings people have about this Congress. 
The polls are pretty clear. But I also think there is a great reservoir 
of hope in this country. So let me talk a little bit about the hope, 
the hope that maybe we can address things in the coming months that 
really matter to the people of this country in a way that really 
affects their future. I am not suggesting that which we will discuss 
here does not matter. I am just saying there are a whole series of 
things that confront us that are challenging, difficult issues.
  A woman called me during my last campaign. During the campaign she 
was in a hospital. A friend of hers called me on her behalf. Her friend 
said: She is in her nineties. She has been a friend of yours and a 
supporter of yours. You have never met her, she never met you, but she 
always liked what you have done. Would you call her in the hospital? I 
said, of course I would.
  I called the hospital and talked to this woman. She had elected to 
die. She had been on kidney dialysis. She said: I have lived a great 
life, but I decided I just don't want to continue with the kidney 
dialysis, so I will die here. I will be here a couple more weeks, maybe 
a week, and eventually--I have made this decision, I am at peace with 
it. I have had a great life. She said--this is about 3 weeks before the 
election--she said to me: Byron, before I came to the hospital, 
however, when I made this decision, I put up all the yard signs, put up 
yard signs on both sides of my property with your name on it, and then 
I voted absentee. She said: By the way, if there is some technical 
requirement that you be alive on election day, don't tell people that I 
am not alive.
  This woman had a great spirit about wanting to be involved, even at 
the end of her life, wanting to be involved in this country's political 
system.
  John F. Kennedy used to say that every mother kind of hopes her child 
might grow up to be President as long as they don't have to be active 
in politics. But politics is an honorable profession. It is the way we 
make decisions in America. All the American people ask of this Senate, 
all they ask of policymakers and decisionmakers is to focus on things 
that matter most. What is ahead of us? What do we do about it?
  We need, in this political system, to justify the faith the American 
people have always had in this system. That faith is shaken now, but we 
need to take action to justify that faith. What do we stand for? What 
needs to be done? What is required to be done? What things are required 
to be done to put our country back on track?
  There was a great little book written by Robert Fulghum, ``All I 
Really Need To Know I Learned In Kindergarten.'' Some may have read 
that book, ``All I Really Need To Know I Learned In Kindergarten.'' 
Play fair, follow the rules, don't hit, wash hands, flush--the book 
went on and on. ``All I Really Need To Know I Learned In 
Kindergarten,'' I was thinking about that with respect to all we really 
need to know in the Senate, about the concern of the American citizens, 
about their future.
  Let me describe our agenda more simply. Perhaps if I were to write a 
book like that, not so much kindergarten but all we really need to 
know, let me describe what I think we ought to be doing.
  First of all, we ought to pay our bills. You cannot spend money you 
don't have on things you don't need. We are choking on debt in this 
country. Especially this Congress and at the White House, pay our 
bills. Take care of our kids. That has to do with education and health 
care and much more. Honor our parents, Medicare, Social Security, and 
other issues. Reward work. Clean up our mess. I guess that is the 
environment. Defend freedom.
  Let me talk a little bit about a couple of these areas, all we really 
need to know. What about the issue of paying our bills? We have one 
more chapter of the same, tired book brought to the Senate. Instead of 
paying our bills, this chapter says we collect $20-$30 billion a year 
from the tax on inherited wealth. Let's not worry about the fact we are 
choking on debt. Let's just get rid of that tax in a way that benefits 
the wealthiest Americans.
  We have already had a vote on the proposition of whether the transfer 
of a family farm or other family business ought to be taxed with an 
estate tax. I offered that amendment twice. Twice. And on January 1, 
2003, the transfer of all family farms and all family businesses to 
lineal descendants or the kids who want to run them would have been 
permanently exempt, 3 years ago. We already had that vote, so don't 
raise

[[Page 9995]]

that issue. Incidentally, the majority voted against that--twice. We 
had that vote and made that decision, regrettably.
  The question is: Pay our bills. Are we going to do that? Are we going 
to keep finding ways to provide emergency appropriations for the 
monthly costs in Iraq and Afghanistan and other related issues and pay 
for none of it? The only people we ask to deal with that issue are the 
soldiers we send to Afghanistan and Iraq. We don't ask the American 
people to believe we ought to pay for it. We have been asked to provide 
roughly $440 billion in emergency funding, every dollar of which is 
borrowed from future generations.
  Pay our bills. What about our kids and grandkids? Are they the ones 
who will pay the bills? Is that responsible? All we really need to know 
is the lesson, pay our bills.
  How about taking care of our kids? Health care, education, poverty. 
We have a lot of things to work on there. We have all of these issues 
with respect to kids without health care, these issues about adequately 
funding education in this country. Is there anything more important to 
anyone than their children? Is there anyone here who believes they 
don't want to do everything they can to leave a country or leave a 
world that is better for their children than it was for them? Whatever 
is in second place to the kids is a long ways behind.
  Can we manifest an agenda in the Senate that puts children first, 
that takes care of our children and doesn't have them pay debts we 
don't have the courage to pay? Can we decide their education is of the 
utmost importance? Can we decide there is no child that ought to show 
up at a hospital or a doctor's office whose medical care is a function 
of how much money their parents have in their pocketbook? Can we make 
those decisions?
  Yes, pay our bills and take care of our kids. How about those for two 
short lessons?
  How about honor our parents? Medicare and Social Security. In the 
last century, people are living much longer. We went, in 100 years, 
from an average life expectancy of 48 years to 78 years now. Think of 
that. We added 30 years to the average life expectancy in this country 
in one century. That is pretty unbelievable. Now, that has caused some 
strains on Social Security and Medicare. That is not surprising. That 
is called success. All of the strains in Medicare and Social Security 
are born of success. People are living longer, better, and healthier 
lives.
  What is the solution to that? Some say the solution to that is to 
privatize Social Security, take it apart. The President led an effort 
last year--he ran a lot of gas through Air Force One--he went all over 
America saying we ought to privatize Social Security.
  It wasn't the first time for him. He did that in 1978, when he ran 
for Congress in Texas. In 1978, he said Social Security would be broke 
in 10 years. He was wrong then. He was wrong last year. Now at least we 
don't have that discussion in front of us. It does require us, from 
time to time, to make adjustments in Social Security or Medicare but 
not under the guise of taking it apart because you never liked it.
  How about fair prices for prescription drugs? Maybe honoring our 
parents would be deciding that whether you are on Social Security or 
Medicare or not quite at that age, that you shouldn't have to pay the 
highest price in the world for prescription drugs. Maybe changing the 
law so that we would allow people to reimport FDA-approved drugs from 
other countries at a fraction of the price would be honoring our 
parents. Standing up for Medicare and standing up for Social Security 
and the values they have brought to our country, maybe that is honoring 
our parents.
  How about rewarding work? Paying our bills, taking care of our kids, 
honoring our parents, how about rewarding work? This Congress four 
times has said we want to continue providing tax cuts to companies that 
close their American manufacturing plants and ship the jobs overseas. 
That is perverse, but that is exactly what has happened in the Senate. 
Four times I have offered an amendment to say let's shut down the tax 
break that says to an American businessman or woman: Close your 
American factory, fire your workers, and move the jobs overseas, you 
get a big, fat $1.2 billion-a-year tax break. And we can't close it.
  We have lost nearly 3 million jobs in the last 4 or 5 years, shipped 
overseas. Alan Blinder, a respected former Vice Chair of the Federal 
Reserve Board, a mainstream economist, says all U.S. manufacturing 
jobs, some 14 million, are at risk to outsourcing. But more than that, 
we have a total of 42 to 56 million jobs, including service jobs, that 
are susceptible to being outsourced to other countries--China, 
Indonesia, Bangladesh, and others--and even those who do not leave our 
country in search of 33 cents-an-hour labor by kids or others who don't 
have rights, even those who don't leave will see a lesser standard of 
living or depressed wages because they will be in competition with 
people in other parts of the world who will work for far less.
  So the question for our workers is: Who is going to stand up for 
them? Does it matter that we fought for a century for the things that 
matter to them--the right to organize, the right to work in a safe work 
plant, child labor laws, a minimum wage, decent health care, decent 
retirement programs? Does it matter to them that we now have a 
circumstance where we say to American companies: Here is the green 
light to search for cheap labor elsewhere. You can get rid of all the 
things that are troublesome to you.
  How about cleaning up our mess? Would that be a value that would make 
some sense? Dare we talk about the environment, about our mess with 
respect to energy? We suck 84 million barrels a day out of this Earth. 
We put straws in the Earth called drilling rigs. We suck 84 million 
barrels a day out of the Earth of oil, and we in this little country of 
the United States use one-fourth of it. Twenty-one million barrels a 
day of that oil comes from Saudi Arabia and Iraq and Kuwait, Venezuela 
and other areas of the world that are troubled. Does it make sense for 
us to be that dependent on those troubled areas of the world? Should we 
care about the environmental consequences of energy? Should we care 
about the dependence on energy, all of those issues? The answer is: 
Yes, clean up our mess. What about defend freedom? There are a lot of 
ways to defend freedom. We have troops in harm's way today that defend 
our freedom. They don't ask questions. They put on a uniform and go. 
Part of defending freedom is also keeping our promise to veterans. 
Those who come home, those who come home losing an leg or arm and go 
through the system at Bethesda or Walter Reed, they are still soldiers, 
but then, ultimately, when they are released, what happens is they 
become veterans. Is the money made available by this Chamber to provide 
for veterans health care sufficient? Will we continue to be a billion 
and a half dollars short because we have other priorities?
  Defending freedom is a lot of things. It is about honoring soldiers, 
especially honoring soldiers. It is about keeping our promise to 
veterans. Defending freedom is not about wiretapping the American 
people. Defending freedom is a lot of things. It is important. It also 
has to be part of any agenda that we describe. There are a lot of 
freedoms that I am proud are a part of our political system--women's 
rights, workers rights, civil rights.
  The decision of this Congress to decide what we want to work on is 
one that will be evaluated by the American people. What do they want us 
to work on? I said when I started, I don't suggest that the issue of 
gay marriage is an irrelevant issue or unimportant. I do suggest that 
we have dealt with that issue in the Defense of Marriage Act. We did it 
in 1996. I also believe the reason it is on the floor today, relative 
to all the other things that I have described, all the other things 
that we should be tackling--paying our bills, taking care of our kids, 
honoring our parents, rewarding work, cleaning up our mess, defending 
freedom, all of those issues--the reason this issue is on the floor is 
about November. That will be true for some long while now.

[[Page 9996]]

  The American people will have a chance to evaluate that. 
Interestingly enough, when that Constitution says, ``We the people,'' 
it means the power of one. For the American people, it comes down to 
the power of one, one person casting one vote on one day. All of the 
power, all of the political power in America exists right there. They 
have the chance to describe what they want for this country, what their 
hopes and dreams are. There is a town square still, and in that town 
square there needs to be a discussion, a conversation in America about 
the glue that keeps this country together. What is this country? What 
kind of glue exists that keeps Americans together as Americans, talking 
in the town square about how to shape the country, how to preserve and 
protect it?
  What we have done and where we have been is extraordinary. This 
country was born of the blood of patriots, not people given to be 
worried about themselves. They gave everything of themselves. This 
country survived a Civil War. We beat back the forces of Nazism and 
imperial soldiers of Japan. We survived the depression. We learned how 
to fly airplanes. We left the ground and flew around the world. We 
built rockets. We walked on the moon. We cured smallpox and polio. We 
created the telephone and television and computer. What we have done is 
breathtaking and quite extraordinary. We did that because our country 
has always been interested in the challenge, in what is ahead, what is 
around the corner.
  Thomas Wolfe, in his book ``You Can't Go Home Again,'' talked about 
the American people being filled with an almost quenchless hope, an 
indestructible belief, a boundless optimism that somehow, some way, 
something good was about to happen. That still exists in the soul of 
this country. Something good is about to happen. My hope is that those 
of us who work in this body will not be so quick to believe that that 
something good is the need to amend the Constitution this week, next 
week, next month, and the month after.
  Not too long ago in a congressional session, we had something like 63 
different proposals filed to amend the basic framework of our 
democracy. We have amended it 17 times in 200 years, one of which was 
to prohibit alcohol. That got repealed. We have amended the 
Constitution rarely. Yet we have people who come routinely to the floor 
of the Senate to say: Change the Constitution. I see very few people 
here who look like George Washington or Franklin or Mason or Madison or 
Thomas Jefferson. Jefferson was not at the Constitutional Convention. 
He was abroad at the time.
  By suggesting I don't see people who look like them, I don't suggest 
that people here aren't good-looking people. I am saying go back and 
read what they did, understand what they constructed. Understand what 
exists in the Constitution and why. Understand what the first 10 
amendments intended to be for this country. Then ask yourself how 
prepared are you to decide we should add several more amendments to the 
Constitution, maybe two this week and next week? How about three or 
four more? There are others filed. Is the Constitution a rough draft? 
Is the work of Franklin and Madison and Mason and Washington a rough 
draft for those who believe that the mood of the moment is to continue 
to amend and amend?
  I know there are those who think this is similar to passing a law. It 
is not. It is whatever the emotion of the moment is ought to persuade 
us to do that. That is not the case either.
  A couple weeks ago, I was in Philadelphia and there is a place called 
the Constitutional Center. All 55 men who wrote the Constitution are 
memorialized in statue in a room, and they are life size, made to their 
exact measurements. It is pretty remarkable to walk among them and then 
to think about what they created. They were an extraordinary group. I 
doubt very much whether such a group exists today. Perhaps it was 
divine providence that gave us at that moment that talent to create 
that Constitution that has created this country. I have been fairly 
well criticized for a long while for not being willing or anxious to 
amend the U.S. States Constitution unless it was the last resort, the 
only resort to respond to something that urgent. I have not found that 
in most cases and have in most cases opposed those who wish to amend 
the Constitution.
  I don't intend to cast aspersions on those who believe this is an 
important issue. I believe strongly this is the wrong issue to be on 
the floor of the Senate today. I believe strongly there are so many 
other issues that we ought to be dealing with today. But having said 
all that, we will, in one way or another, decide as the Senate about 
these two constitutional amendments and about the question of whether 
our country should continue to have a tax on inherited wealth. We will 
get through this. My hope is that at least some of the suggestions I 
have made about paying our bills, about taking care of our kids, 
honoring our parents, cleaning up our mess and doing the things that 
defend freedom and honor work, maybe those are the things we might get 
to soon. I hope so. In that case, I think the American people could 
take some hope and believe that Congress has sunk its teeth into that 
which matters a great deal to our future.
  I yield the floor.
  The PRESIDING OFFICER (Mr. Vitter). The Senator from Kansas is 
recognized.
  Mr. BROWNBACK. Mr. President, I thank my colleague from North Dakota 
for speaking about the constitutional amendment.
  Before we left on Memorial Day, we dealt with a very important issue, 
and that was immigration. Immigration is now in conference committee. 
It is a key topic. It is my hope that by the end of this week or next 
we will deal with the budget and budget reforms. We need to get to a 
balanced budget. I believe we need to do it in 5 years. Others have 
said we need to cut the deficit in half in 5, if we can. We are dealing 
with that issue. I hope we can have support from our colleagues on the 
other side to move forward on those budget issues to get our budget in 
balance. We have had the issues of Katrina. The Presiding Officer knows 
so much about that; the war in Iraq. We can get there, but we will have 
to show some determination. I hope we get bipartisan support on that.
  I also remind my colleagues that there hardly could be a more 
important issue than the foundational structure of how we build society 
and how societies have been built for thousands of years. They have 
been built around the institution of marriage, of a man and a woman 
bonded together for life. Out of that, families develop and grow and 
prosper. Children are raised, and that is the next generation. The next 
generation after that is brought forth and the generation preceding 
them is cared for or nurtured. That has been our fundamental structure. 
It hasn't been a structure of Government where we say we will have a 
whole bunch of Government out here to take care of people. Basically, 
what we say is: We will have a whole bunch of families out here to take 
care of people. And when that doesn't work, we will have Government 
support the structure and support the people who fall through the 
cracks. We will try to help as much as we can. We will try to help 
families as much as we can, and that is why we try to offer help for 
marriages. That is why we try to give advantages to marriages, so that 
that is the best structure that we know of that has been created to 
raise children, the next generation.
  The problem we have in front of us is the institution of marriage has 
been weakened, and the effort to redefine it on this vast social 
experiment that we have going on, redefining marriage differently than 
it has ever been defined before, this effort of this vast social 
experiment, the early data that we see from other places, harms the 
institution of the family, the raising of the next generation. And it 
is harmful to the future of the Republic.
  I think we can hardly have a more foundational debate regarding 
things of importance than the marriage amendment. I remind my 
colleagues that there is nothing controversial that we are debating. I 
will put up a chart that

[[Page 9997]]

people have already seen. We need to remind people of the wording. The 
wording on this amendment is:

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

  This is hardly profound science. This is a statement and people 
understand it. It is clear. We have held nine hearings in the Senate on 
it. The next sentence is:

       Neither this Constitution, nor the Constitution of any 
     State, shall be construed to require that marriage or the 
     legal incidents thereof be conferred upon any union other 
     than the union of a man and a woman.

  In other words, the courts cannot define marriage differently. 
Legislative bodies can look at it differently. The courts cannot. It 
says the legislature, the people's body, has to be involved in deciding 
the institution of marriage.
  Some say this is something that was brought up by Congress in an 
election year because we are concerned about elections. But I can 
certainly say for this Senator, and everybody I know supporting this 
amendment, that is not the case. I view this as foundational to this 
society, to the future of the Republic. I think I am in pretty good 
company.
  I will show you the next chart on this particular issue and the 
number of States that have taken up the issue of fundamentally deciding 
what marriage should look like. 45 out of 50 States have either adopted 
constitutional amendments or passed laws protecting traditional 
marriages. That means we are already beyond the three-fourths number of 
States that have defined marriage as the union of a man and a woman. To 
amend the Constitution, you have to have two-thirds of the House, two-
thirds of the Senate, and three-fourths of the State. We are already 
over three-fourths of the States. It is kind of a reverse 
constitutional amendment because 45 States have acted and said marriage 
is a union of a man and a woman, and we think it is so important that 
we are going to act ahead of time. We are going to go at this now so 
that the courts cannot beat us to the punch.
  But the problem is that those are State legislatures, and they can be 
trumped by a Federal court, which has already happened, and their State 
constitution can be ruled null and void and unconstitutional. So you 
have 45 of the 50 States already speaking on this and saying marriage 
is the union of a man and a woman, feeling that it is so important that 
they want to act before Congress, before the Constitution can be 
amended. They think it is that important. They have already moved 
forward before this body has enacted.
  Nineteen States have constitutional amendments protecting the 
definition of marriage as a man and a woman; 26 others have statutes. 
Only five have not acted to protect that law statutorily or 
constitutionally. I will show you the next chart. You cannot say this 
kind of barely passed or that it is a small majority or that people 
don't care about this issue. I will show you a chart of how the vote 
total has been going across the States, across the country, in every 
region of America. When a constitutional amendment in a State defining 
marriage as the union of a man and a woman has come up in front of the 
people, the people have passed it. They have passed it, and it is not 
by 51 to 49. It is not just in the Midwest or the South; it is in the 
East, it is in the West, it is everywhere. Look at the chart, starting 
from the earliest one in 1998 to the latest, in my State of Kansas, in 
2005. Look at the margins they have passed it by. You have a low of 57 
percent in Oregon on the west coast. Still, that is a strong majority. 
My guess is that a number of people in this body on their first 
election were not elected with more than 57 percent of the vote. And 
you have the highs of 86 percent in Mississippi, 79 percent in my 
State, and in North Dakota 73 percent of the vote.
  It is not a small group of people saying, yes, it does matter to me; 
it is a strong majority of the public across the entire country that is 
saying we need to define this institution before the courts come in and 
do this vast social experiment of redefining the family unit we build 
families around. We need to get this defined. The average ballot in 
support is 71.5 percent. That is the best public opinion polling you 
can get--how people vote when they go to the booth in region after 
region, defining what marriage is. They know what they believe marriage 
is. If we had Senators who would vote as their States have voted, we 
would have 90 votes for a constitutional amendment, defining marriage 
as the union of a man and a woman. That is how their States have voted, 
either by a constitutional ballot or within their legislature, in the 
laws that they have passed.
  I urge my colleagues to reconsider the language being used here. 
There has been strong and vitriolic language thrown out. I don't 
appreciate that on any side of it, whether it is supporting the 
constitutional amendment or against it. People are trying to make 
fundamental policy for the country on a fundamental issue, and that is 
marriage.
  It is not bigotry to define marriage as the union of a man and a 
woman. If that were the case, then you have 45 of 50 States that have 
done that. You have major religious institutions, Pope Benedict of the 
Catholic Church, and you have many other church leaders saying that 
marriage is the union of a man and a woman. You have different racial 
groups that are saying marriage is a union of a man and a woman. They 
are not bigoted individuals. They are simply seeking good public policy 
and the best place to raise a family, recognizing that the law is a 
teacher. If the law says you can redefine marriage any way you want to, 
the law teaches you can have marriage any way you want. If you define 
that marriage downward, you harm an institution that already is in 
great difficulty in this country. I will cover that much more later. 
Let's watch our language. We are trying to deal with a serious matter 
for the future of the Republic.
  On Saturday, I was at a wedding in Topeka at which my daughter was 
the maid of honor. I don't think I am too partial in telling my 
colleagues that she was beautiful, radiant--not to compete with the 
bride, but she was beautiful, and I was very proud of her. It reminded 
me of that time-honored institution we are talking about--marriage, the 
union of a man and a woman. As I sat next to my wife, with our children 
next to us, other than my daughter who was in the wedding, I thought 
what a wonderful institution, what a way that we want to have this 
country built around, with grandparents and parents and children and 
siblings bonded together for life.
  And do you know what. Families fight. There gets to be difficulties 
in families. But they stay together and support each other. It is the 
durability of that structure that helps build people. Families 
encourage each other. You push one another and say you ought to do 
this, and you can do that; and when somebody starts to fall, you pick 
them up. Even when you get mad, you don't go away--some people do. But 
you say, all right, it is family. We hang in here and we have to do 
that. That is what families do. That is why they are durable and good, 
and that is why we want to support them, because of what a family is. 
It is that durable set of relationships that are thick and that bind us 
together. We are reminded when we go to a wedding ceremony and we say 
here is a young couple getting married, and they are beautiful young 
people and they are radiant and excited and nervous; they probably 
don't have any clue of what they are getting into. As my wife and I 
said afterwards, we didn't know anything about marriage when we walked 
into it. Twenty-four years later, we know a little bit more about it. 
We know the promise and the beauty of it. We have children from it. We 
have been gifted with five children. You know the importance of it, of 
staying in there and supporting that family.
  We know the values transmission that occurs in a marriage, what the 
parents say to their children and what they live in front of their 
children. We know the values transmission that takes place from 
grandparents, if they are surviving, to children, passing on those 
traditions and thoughts. It is a beautiful institution; it is one that 
we pass on the values from to the next generation.

[[Page 9998]]

  It is an institution that is in trouble. We have had a lot of 
dissolutions of marriage in this country, as a result of any number of 
factors. Maybe it is the speed at which we live. We all say in our 
hearts we know the best thing is to have that marriage endure. We know 
the best thing is for the marriage to endure and to raise good, healthy 
children. We know the best thing is for that marriage to nurture and 
grow those children. We know that in our hearts. You don't have to have 
a law passed to tell you that.
  We also know this institution is in trouble, and if you redefine it, 
you are going to create further problems for a fundamental institution. 
What you are going to do is you will take out a lot of the breath that 
is left in the institution, and you will move in another direction.
  Mr. ALLARD. Will the Senator yield?
  Mr. BROWNBACK. I will be happy to after my final point. Other 
countries that have redefined marriage have seen an enormous loss in 
the institution. Other countries that have defined this differently and 
have been there for a period of time have found a loss in the 
institution of marriage and the number of people willing to get 
married--to the point that most children are born out of wedlock, not 
born in these bonded relationships. That is the future of what takes 
place when you redefine a fundamental institution that everybody agrees 
is a union between a man and a woman. When the law teaches it is 
different, you will move the people away from that, and we will have 
fewer marriages in America. That is not what we need nor want.
  I am happy to yield to the primary cosponsor of the constitutional 
amendment.
  Mr. ALLARD. I thank the Senator from Kansas for his remarks. During 
several hearings we both participated in, we have heard about how a 
healthy marriage benefits children, how it benefits a community and the 
foundation of society. Don't you feel that if we don't preserve the 
definition of marriage, somehow or other we make marriage less 
relevant, and when you make it less relevant, then I think it is easier 
to have higher divorce rates and easier to have a dysfunctional family 
because the real importance of a family is lost.
  Mr. BROWNBACK. Reclaiming my time, I thank my colleague for the 
question. I not only think that--and it strikes me that is natural to 
presume--that is the experience taking place in other countries. As I 
said, I will have some charts on this tomorrow that I will bring 
forward and showcase to people. The experience in Europe and the 
Scandinavian countries is not encouraging in what we have seen taking 
place with the institution of marriage. Those are places that have 
redefined marriage over a period of time now. They have said marriage 
can be between same-sex couples. You have counties in Norway where over 
80 percent of the first-born children are born out of wedlock and two-
thirds of the second children are. The institution no longer means much 
of anything. It is defined away.
  You can say: OK, that is fine because you can raise good children in 
that setting. You can raise good children in a single family setting or 
with two people living together. But from all the social data, we know 
that is not the best place. We know that you are asking for a lot of 
problems if you define marriage away or let it be defined away by the 
courts. If we are going to do this, if it is going to be allowed, at 
least let's have the people involved in this discussion and not have it 
done by the courts, which is where we are headed right now. This is 
going to be done by the courts.
  I want to put another chart up to show that particular point about 
how many courts are taking up this issue of marriage. Here you see in 
all the States and all these States' legislatures they are saying 
marriage is the union of a man and a woman. In 45 of 50 States, 
marriage is defined as the union of a man and a woman. What has 
happened in the legal framework? We have seen this in other areas in 
this country where the people speak and then the activists--a small 
group--take this matter and say we are not going to go through the 
legislative body and work with the people and try to change the hearts 
and minds of the people. We are going to go through the courts.
  So what is happening in the courts on this? Nine States face lawsuits 
challenging traditional marriage laws--nine States. In four of those 
nine States, judges have already followed Massachusetts and found a 
right of same-sex marriage in the State constitutions--four of those 
nine, already. In April of 2005--and there were a number of my 
colleagues on the other side of the aisle the last time this came up 2 
years ago who said, Well, when the courts start ruling against this, 
when the Federal courts start ruling against this, then I will look at 
the need for a constitutional amendment at the Federal level. All 
right, we got it, unfortunately. I wish we didn't. But in April of 
2005, a Federal court in the district of Nebraska held that the State's 
amendment, which was approved by 70 percent of Nebraskans--70 percent, 
which is about the same number that support Nebraska football; it is 
higher, I suppose, than that--but 70 percent of Nebraska voters voted 
for that constitutional amendment defining marriage as the union of a 
man and a woman, and the Federal court struck it down and said it was 
unconstitutional. This is a Federal court saying that a State marriage 
law in the State's Constitution, that went to the people, supported by 
70 percent of the people by a vote, is unconstitutional. All right. Now 
we have the Federal courts. And Federal courts challenges to the 
Federal DOMA, the Defense of Marriage Act, which the prior speaker, the 
Senator from North Dakota, was talking about, we now have Federal 
challenges to that, and more is coming, more is coming. So for my 
colleagues to say, well, it is not a particularly important topic, and 
we have other things we need to deal with, that is not what the States 
say. The States say this is an important topic, and they are staring 
down the barrel of Federal courts defining it away, as the first 
Federal court that has ruled on this has already done, in saying 
marriage is not the union of a man and a woman. It is not. Somebody is 
going to define this--which was point one I was raising at the outset--
somebody is going to define this and I believe it should be legislative 
bodies and the people.
  No. 2, this is about the institution of marriage and how you raise 
the next generation. That is something I think we need to cover in some 
depth. We had a great debate here on this floor about immigration the 2 
weeks prior to going on break and it was a great debate. Immigration is 
an important policy issue in this country and it is facing us now. We 
have a huge problem. The system is not working. We had a great debate. 
We need to have a great debate about marriage, about this fundamental 
institution, because we need to think and look and see where this 
institution is going. It is in a great deal of difficulty.
  I want to cover this, particularly from the context of a group which 
has just issued a paper on it. There is an important group of 
prestigious American academics from top universities who have just 
released what I think is a groundbreaking statement of principles to 
guide the public debate on the marriage issue, and we have needed a 
debate about marriage because the percentage of people getting married 
has fallen, the number of divorces has risen greatly, and approximately 
half of our children under the age of 18 will spend a significant 
portion of their childhood in a single parent household. We have 
welfare policies in this country that penalize people for getting 
married. It is bad policy. And now the lowest income individuals in the 
United States are the least likely to get married. So I guess you could 
say that policy has worked. It is a horrific idea. Reagan probably had 
this right when he said, ``If you want more of something, subsidize it; 
if you want less of something, tax it.'' We have subsidized the 
situation of not getting married if you are in a low-income strata, and 
that is indeed what has happened in this country.
  This group of academics has just issued from Princeton ``Ten 
Principles on Marriage and the Public Good.'' It is produced by top 
scholars in history, economics, psychiatry, law, sociology

[[Page 9999]]

and philosophy, and presents research on why the defense of marriage is 
in the public interest. Now, remember, what we are talking about is in 
the public interest. This is what we need as a Nation. What do we need 
to do? What is in the public interest? And they are clearly saying that 
it is in the public interest to support marriage as the union of a man 
and a woman and have more of it, not less, and to have stronger unions, 
not weaker ones, and to have an institution that is supported by law, 
not defined out of existence by law. They say this:

       In recent years, marriage has weakened, with serious 
     negative consequences for society as a whole. Four 
     developments are especially troubling: Divorce, illegitimacy, 
     cohabitation, and same-sex marriage. Marriage protects 
     children, men and women, and the common good. The health of 
     marriage is particularly important in a free society, which 
     depends upon citizens to govern their private lives and rear 
     their children responsibly, so as to limit the scope, size, 
     and power of the State.

  It is families that buttress the State and also limit the scope, 
size, and power of the State.

       The Nation's retreat from marriage has been particularly 
     consequential for our society's most vulnerable communities: 
     Minorities and the poor pay a disproportionately heavy price 
     when marriage declines in their communities. Marriage also 
     offers men and women as spouses a good they can have in no 
     other way: a mutual and complete giving of the self. Thus, 
     marriage understood as the enduring union of husband and wife 
     is both a good in itself and also advances the public 
     interest.
       We affirm the following ten principles--

  This is this Princeton group of scholars.

       That summarize the value of marriage--a choice that most 
     people want to make, and that society should endorse and 
     support.

  They then list these 10 principles of marriage and the public good.

       Marriage is a personal union, intended for the whole of 
     life, of husband and wife.
       Marriage is a profound human good, elevating and perfecting 
     our social and sexual nature.
       Ordinarily, both men and women who marry are better off as 
     a result.
       Marriage protects and promotes the well-being of children.
       Marriage sustains civil society and promotes the common 
     good.
       Marriage is a wealth-creating institution, increasing human 
     and social capital.
       When marriage weakens, the equality gap widens, as children 
     suffer from the disadvantages of growing up in homes without 
     committed mothers and fathers.
       A functioning marriage culture serves to protect political 
     liberty and foster limited government.
       The laws that govern marriage matter significantly.
       And No. 10, ``civil marriage'' and ``religious marriage'' 
     cannot be rigidly or completely divorced from one another.

  They go on to say:

       Creating a marriage culture is not the job for government. 
     Families, religious communities, and civic institutions, 
     along with intellectual, moral, religious, and artistic 
     leaders, point the way. But law and public policy will either 
     reinforce and support these goals or undermine them. We call 
     upon our nation's leaders, and our fellow citizens, to 
     support public policies that strengthen marriage as a social 
     institution, including:
       Protect the public understanding of marriage as the union 
     of one man and one woman as husband and wife.
       Investigate divorce law reforms.
       End marriage penalties for low-income families.
       Protect and expand pro-child and pro-family provisions in 
     our Tax Code.
       Protect the interests of children from the fertility 
     industry.

  I ask that this important statement of principles from top American 
scholars be considered carefully by my colleagues. I hope it will help 
guide our debate on this issue.
  I want to talk a bit about that in the sense that we are having a 
profound impact on society and we have had this shift in the importance 
and status of marriage that has happened during one generation--
basically my generation. We had a very strong marriage culture going 
into the 1960s, with very low divorce rates in the United States. There 
were undoubtedly situations that people married into that were bad, 
that were abusive prior to that period of time, and there certainly are 
today as well. But I don't think anybody could argue that today we have 
too many situations where too many children are in too weak of a 
household structure, lacking the concentration of adults in their 
lives, that this fundamental breakdown of the family has allowed in 
many cases to happen. And then you have that huge, enormous impact on 
that next generation of children.
  That is why this group of intellectuals has come together and said, 
Look, for the future of society, for the future of our culture, we need 
a strong marriage institution. Don't weaken it and don't redefine it 
away from what it is and harm it further.
  I want to talk briefly about the effects on Massachusetts and the 
effect the change of laws in Massachusetts has had on this particular 
marriage debate. In terms of the societal effects of regularizing same-
sex unions, some have pointed out that the legalizing of same-sex 
unions in some States--and this has happened in Massachusetts and in 
Vermont--has not destroyed the society of those States. So they are 
taking the counterargument on this and saying, What is the problem 
here? Why not just define it any way you want to and if people of the 
same gender want to get married, that is fine, and it is not going to 
hurt my marriage. That is the way the debate will come up. I am not 
arguing that short-term changes like this will have detectable effects 
immediately where you can say, OK, you are going to define it one way 
this year and the next year you are going to see the number of 
heterosexual unions decline, and you are going to see major impacts on 
the marriage institution. It can take and does take years for the full 
effects of a change like this to show up because, remember, what you 
are doing is you are sewing into the culture, you are changing the 
culture.
  When you redefine an institution like marriage, you are changing the 
culture. You are saying, OK, we have had a foundational institution in 
this culture: It is marriage. It is a union of a man and a woman bonded 
together for life. It is where we raise our families, where we raise 
the next generation and bring them up; that is a foundational 
structure. Now we are redefining that and saying, Well, it doesn't need 
to be a man and a woman. That is a cultural shift, and cultural shifts 
take years to show up, but they will show up, and they have enormous 
impact.
  We have seen small changes taking place already in places like 
Massachusetts. State marriage licenses now contain places for ``Partner 
A'' and ``Partner B,'' rather than husband and wife. Perhaps soon the 
terms ``husband'' and ``wife'' will be eradicated, and as for the terms 
``mother'' and ``father'' one can only imagine what will happen to the 
definitions of those institutions.
  Those cultural signals are not going to strengthen the American 
family. This issue has been thoroughly discussed and debated. I want to 
complete this point--and I will have more charts to show on this--of 
what takes place over a period of two to three decades when you 
redefine an institution like marriage. In fact, I want to show, and 
actually I believe we have a chart on that today, and I am going to 
pull that up here a little bit later on to show what has happened in 
other countries when they have redefined the institution, if we can 
find that chart. I want to come back to that.
  Before I get to that, though, I want to point out how much we have 
discussed this issue. Some may suggest, Well, we are rushing this to 
the floor. I can't believe they would, but some might say, Well, it is 
just being rushed to the floor and we really don't understand the 
ramifications of this particular constitutional amendment, and argue 
from that perspective. I want to point out that we have had nine 
hearings on this subject from 2003, 2004, and 2005. We have held 
hearings with dozens of experts on this topic. We have held hearings 
about the impact of changing the definition of marriage. We have held 
hearings with legal experts and scholars of what does this two-sentence 
constitutional amendment mean. We have held hearings from lots of 
different angles on this.
  One thing has certainly become clear in these hearings: Traditional 
marriage promotes stability in society and government has a vital 
interest in encouraging and providing the conditions to maintain as 
many traditional marriages as possible.

[[Page 10000]]

  Once the process of redefining marriage begins, it is but a short 
step to the dissolution of marriage as an institution all together. I 
don't think that is the way we want to go, and it is certainly not the 
way we want to go for our children.
  There is also a point about when you redefine marriage, what takes 
place in institutions that want to stay with a traditional definition 
of marriage. There now is a growing body of thought that institutions 
will not be allowed to define marriage as the union of a man and a 
woman.
  Mr. President, I ask unanimous consent to have printed in the Record 
an article that I think is a very interesting and important one done by 
Maggie Gallagher that looks at the loss of religious freedom when you 
redefine marriage.
  The PRESIDING OFFICER. Without objection, it is so ordered.
  There being no objection, the material was ordered to be printed in 
the Record, as follows:

                [From the Weekly Standard, May 15, 2006]

  Banned in Boston--The Coming Conflict Between Same-sex Marriage and 
                           Religious Liberty

                         (By Maggie Gallagher)

       Catholic Charities of Boston made the announcement on March 
     10: It was getting out of the adoption business. ``We have 
     encountered a dilemma we cannot resolve. . . . The issue is 
     adoption to same-sex couples.''
       It was shocking news. Catholic Charities of Boston, one of 
     the nation's oldest adoption agencies, had long specialized 
     in finding good homes for hard to place kids. ``Catholic 
     Charities was always at the top of the list,'' Paula 
     Wisnewski, director of adoption for the Home for the Home for 
     Little Wanderers, told the Boston Globe. ``It's a shame, 
     because it is certainly going to mean that fewer children 
     from foster care are going to find permanent homes.'' Marylou 
     Sudders, president of the Massachusetts Society for the 
     Prevention of Cruelty to Children, said simply, ``This is a 
     tragedy for kids.''
       How did this tragedy happen?
       It's a complicated story. Massachusetts law prohibited 
     ``orientation discrimination'' over a decade ago. Then in 
     November 2003, the Massachusetts Supreme Judicial Court 
     ordered gay marriage. The majority ruled that only animus 
     against gay people could explain why anyone would want to 
     treat opposite-sex and same-sex couples differently. That 
     same year, partly in response to growing pressure for gay 
     marriage and adoption both here and in Europe, a Vatican 
     statement made clear that placing children with same-sex 
     couples violates Catholic teaching.
       Then in October 2005, the Boston Globe broke the news: 
     Boston Catholic Charities had placed a small number of 
     children with same-sex couples. Sean Cardinal O'Malley, who 
     has authority over Catholic Charities of Boston, responded by 
     stating that the agency would no longer do so.
       Seven members of the Boston Catholic Charities board (about 
     one-sixth of the membership) resigned in protest. Joe 
     Solmonese, president of the Human Rights Campaign, which 
     lobbies for lesbian, gay, bisexual, and transgender equal 
     rights, issued a thundering denunciation of the Catholic 
     hierarchy: ``These bishops are putting an ugly political 
     agenda before the needs of very vulnerable children. Every 
     one of the nation's leading children's welfare groups agrees 
     that a parent's sexual orientation is irrelevant to his or 
     her ability to raise a child. What these bishops are doing is 
     shameful, wrong, and has nothing to do whatsoever with 
     faith.''
       But getting square with the church didn't end Catholic 
     Charities' woes. To operate in Massachusetts, an adoption 
     agency must be licensed by the state. And to get a license, 
     an agency must pledge to obey state laws barring 
     discrimination--including the decade-old ban on orientation 
     discrimination. With the legalization of gay marriage in the 
     state, discrimination against same-sex couples would be 
     outlawed, too.
       Cardinal O'Malley asked Governor Mitt Romney for a 
     religious exemption from the ban on orientation. Governor 
     Romney reluctantly responded that he lacked legal authority 
     to grant one unilaterally, by executive order. So the 
     governor and archbishop turned to the state legislature, 
     requesting a conscience exemption that would allow Catholic 
     Charities to continue to help kids in a manner consistent 
     with Catholic teaching.
       To date, not a single other Massachusetts political leader 
     appears willing to consider even the narrowest religious 
     exemption. Lieutenant Governor Kerry Healey, the Republican 
     candidate for governor in this fall's election, refused to 
     budge: ``I believe that any institution that wants to provide 
     services that are regulated by the state has to abide by the 
     laws of the state,'' Healey told the Boston Globe on March 2, 
     ``and our antidiscrimination laws are some of our most 
     important.'' equality in this country.'' Marc Stern is the 
     general counsel for the center-left American Jewish Congress. 
     Robin Wilson of the University of Maryland law school is 
     undecided on gay marriage. Jonathan Turley of George 
     Washington law school has supported legalizing not only gay 
     marriage but also polygamy.
       Reading through these and the other scholars' papers, I 
     noticed an odd feature. Generally speaking the scholars most 
     opposed to gay marriage were somewhat less likely than others 
     to foresee large conflicts--perhaps because they tended to 
     find it ``inconceivable,'' as Doug Kmiec of Pepperdine law 
     school put it, that ``a successful analogy will be drawn in 
     the public mind between irrational, and morally repugnant, 
     racial discrimination and the rational, and at least morally 
     debatable, differentiation of traditional and same-sex 
     marriage.'' That's a key consideration. For if orientation is 
     like race, then people who oppose gay marriage will be 
     treated under law like bigots who opposed interracial 
     marriage. Sure, we don't arrest people for being racists, but 
     the law does intervene in powerful ways to punish and 
     discourage racial discrimination, not only by government but 
     also by private entities. Doug Laycock, a religious liberty 
     expert at the University of Texas law school, similarly told 
     me we are a ``long way'' from equating orientation with race 
     in the law.
       By contrast, the scholars who favor gay marriage found it 
     relatively easy to foresee looming legal pressures on faith-
     based organizations opposed to gay marriage, perhaps because 
     many of these scholars live in social and intellectual 
     circles where the shift Kmiec regards as inconceivable has 
     already happened. They have less trouble imagining that 
     people and groups who oppose gay marriage will soon be 
     treated by society and the law the way we treat racists 
     because that's pretty close to the world in which they live 
     now.


                     the (gay) public intellectual

       Of all the scholars who attended, perhaps the most 
     surprising is Chai Feldblum. She is a Georgetown law 
     professor who is highly sought after on civil rights issues, 
     especially gay civil rights. She has drafted many federal 
     bills to prohibit orientation discrimination and innumerable 
     amicus briefs in constitutional cases seeking equality for 
     gay people. I ask her why she decided to make time for a 
     conference on the impact of same-sex marriage on religious 
     liberty.
       ``Not because I was caught up in the panic,'' she laughs. 
     She'd been thinking through the moral implications of 
     nondiscrimination rules in the law, a lonely undertaking for 
     a gay rights advocate. ``Gay rights supporters often try to 
     present these laws as purely neutral and having no moral 
     implications. But not all discrimination is bad,'' Feldblum 
     points out. In employment law, for instance, ``we allow 
     discrimination against people who sexually abuse children, 
     and we don't say `the only question is can they type' even if 
     they can type really quickly.''
       To get to the point where the law prohibits discrimination, 
     Feldblum says, ``there have to be two things: one, a majority 
     of the society believing the characteristic on which the 
     person is being discriminated against is not morally 
     problematic, and, two, enough of a sense of outrage to push 
     past the normal American contract-based approach, where the 
     government doesn't tell you what you can do. There has to be 
     enough outrage to bypass that basic default mode in America. 
     Unlike some of my compatriots in the gay rights movement, I 
     think we advance the cause of gay equality if we make clear 
     there are moral assessments that underlie antidiscrimination 
     laws.''
       But there was a second reason Feldblum made time for this 
     particular conference. She was raised an Orthodox Jew. She 
     wanted to demonstrate respect for religious people and their 
     concerns, to show that the gay community is not monolithic in 
     this regard.
       ``It seemed to me the height of disingenuousness, 
     absurdity, and indeed disrespect to tell someone it is okay 
     to `be' gay, but not necessarily okay to engage in gay sex. 
     What do they think being gay means?'' she writes in her 
     Becket paper. ``I have the same reaction to courts and 
     legislatures that blithely assume a religious person can 
     easily disengage her religious belief and self-identity from 
     her religious practice and religious behavior. What do they 
     think being religious means?''
       To Feldblum the emerging conflicts between free exercise of 
     religion and sexual liberty are real: ``What 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.'' Most of the time, 
     the need to protect the dignity of gay people will justify 
     burdening religious belief, she argues. But 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.
       ``You have to stop, think, and justify the burden each 
     time,'' says Feldblum. She pauses. ``Respect doesn't mean 
     that the religious person should prevail in the right to 
     discriminate--it just means demonstrating a respectful 
     awareness of the religious position.''
       Feldblum believes this sincerely and with passion, and 
     clearly (as she reminds me) against the vast majority of 
     opinion of her own community. And yet when push comes

[[Page 10001]]

     to shove, when religious liberty and sexual liberty conflict, 
     she admits, ``I'm having a hard time coming up with any case 
     in which religious liberty should win.''
       She pauses over cases like the one at Tufts University,
       Interestingly, Stern points out, a single ``derogatory or 
     demeaning'' remark not seeking sexual gratification or 
     threatening a person's job security does not constitute 
     harassment under ordinary federal and state sexual harassment 
     law originally intended to protect women in the workplace. 
     Moreover, Stern says, ``our entire free speech regime depends 
     on the principle that no adult has a right to expect the law 
     will protect him from being exposed to disagreeable speech.''
       Except, apparently in New Jersey, where a state attorney 
     general's opinion concluded, ``[C]learly speech which 
     violates a nondiscrimination policy is not protected.'' 
     ``This was so `clear' to the writer,'' notes Stern, ``that 
     she cited not a single case or law review article in 
     support.'' Ultimately, the school withdrew its reprimand from 
     Daniel's employment file after receiving negative publicity 
     and the threat of a lawsuit from the Foundation for 
     Individual Rights in Education (FIRE).
       Sexual harassment law as an instrument for suppressing 
     religious speech? A few days after I interviewed Stern, an 
     Alliance Defense Fund press release dropped into my mail box: 
     ``OSU Librarian Slapped with `Sexual Harassment' Charge for 
     Recommending Conservative Books for Freshmen.'' One of the 
     books the Ohio State librarian (a pacifist Quaker who drives 
     a horse and buggy to work) recommended was It Takes a Family 
     by Senator Rick Santorum. Three professors alleged that the 
     mere appearance of such a book on a freshman reading list 
     made them feel ``unsafe.'' The faculty voted to pursue the 
     sexual harassment allegation, and the process quickly 
     resulted in the charge being dropped.
       In the end the investigation of the librarian was more of a 
     nuisance--you might call it harassment--than anything else. 
     But the imbalance in terms of free speech remains clear: 
     People who favor gay rights face no penalty for speaking 
     their views, but can inflict a risk of litigation, 
     investigation, and formal and informal career penalties on 
     others whose views they dislike. Meanwhile, people who think 
     gay marriage is wrong cannot know for sure where the line is 
     now or where it will be redrawn in the near future. ``Soft'' 
     coercion produces no martyrs to disturb anyone's conscience, 
     yet it is highly effective in chilling the speech of ordinary 
     people.
       Finally, I ask Stern the big question on everyone's mind. 
     Religious groups that take government funding will almost 
     certainly be required to play by the nondiscrimination rules, 
     but what about groups that, while receiving no government 
     grants, are tax-exempt? Can a group--a church or religious 
     charity, say--that opposes gay marriage keep its tax 
     exemption if gay marriage becomes the law? ``That,'' says 
     Stern, ``is the 18 trillion dollar question.''
       Twenty years ago it would have been inconceivable that a 
     Christian or Jewish organization that opposed gay marriage 
     might be treated as racist in the public square. Today? It's 
     just not clear.
       ``In Massachusetts I'd be very worried,'' Stern says 
     finally. The churches themselves might have a First Amendment 
     defense if a state government or state courts tried to 
     withdraw their exemption, he says, but ``the parachurch 
     institutions 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.''
       He blames religious conservatives for adopting the wrong 
     political strategy on gay issues. ``Live and let live,'' he 
     tells me, is the only thing around the world that works. But 
     I ask him point blank what he would say to people who dismiss 
     the threat to free exercise of religion as evangelical 
     hysteria. ``It's not hysteria, this is very real,'' he tells 
     me, ``Boston Catholic Charities shows that.''
       Fundamentally, Stern sees this as a ``religious war'' 
     between people for whom an egalitarian secular ethic is the 
     only rational option and people who can make room for an 
     ethic based on faith in a God who commands. There are very 
     few signs of a willingness to compromise on either side, he 
     notes.
       ``You look around the world and even the right to preach is 
     in doubt,'' he tells me. ``In the United States we are not 
     foreseeably in that position. Fundamentally speech is still 
     safe in the United States. Beyond speech, nothing is safe.''


                       The Health Care Law Expert

       Robin Wilson is an expert in both family law and health 
     care law. So when Anthony Picarello approached her about 
     thinking through the impact gay marriage may have on 
     religious institutions, she had a ready model at hand: the 
     struggles over conscience exemptions in the health care field 
     after Roe v. Wade elevated abortion to a constitutional 
     right.
       Wilson predicts ``a concerted effort to take same-sex 
     marriage from a negative right to be free of state 
     interference to a positive entitlement to assistance by 
     others. Although Roe and Griswold established only the right 
     to noninterference by the state in a woman's abortion and 
     contraceptive decisions, family planning advocates have 
     worked strenuously to force individual institutions to 
     provide controversial services, and to force individual 
     health care providers to participate in them.''
       ``This litigation after Roe,'' she says, ``provides a 
     convincing prediction about the trajectory that litigation 
     forced to marry same sex couples. What about the other 
     potential conflicts? Are they real? ``There are already 
     tensions,'' he tells me. ``I think there is a kind of 
     collision course here that is inevitable.''
       For a man in the conciliation business, Hayes doesn't sound 
     optimistic. ``I think it's'' a serious question that will 
     grow more difficult. I think we will have more and more 
     tension between efforts by the state to protect gay rights 
     and the need to protect religious freedom. This will have an 
     impact on religious individuals as well as perhaps religious 
     organizations in areas such as housing; the workplace, 
     hiring.''
       I ask him whether his concerns are shared by the wide 
     spectrum of religious and civil rights groups he deals with. 
     ``Everyone's talking about it, thinking about it,'' Haynes 
     tells, me. ``There are a lot of different ideas about where 
     we are going to end up, but everyone thinks it is the battle 
     of our times.''


                           The Marriage Line

       How much of the coming threat to religious liberty actually 
     stems from same sex marriage? These experts' comments make 
     clear that it is not only gay marriage, but also the set of 
     ideas that leads to gay marriage--the insistence on one 
     specific vision of gay rights--that has placed church and 
     state on a collision course. Once sexual orientation is 
     conceptualized as a protected status on a par with race, 
     traditional religions that condemn homosexual conduct will 
     face increasing legal pressures regardless of what courts and 
     Congress do about marriage itself.
       Nevertheless, marriage is a particularly potent legal 
     ``bright line.'' Support for marriage is firmly established 
     in our legal tradition and in our public policy. After it 
     became apparent, that no religious exemption would be 
     available for Catholic Charities in Massachusetts, the church 
     looked hard for legal avenues to continue helping kids 
     without violating Catholic principles. If the stumbling block 
     bad been Catholic Charities' unwillingness to place children 
     with single people--or with gay singles--marriage might have 
     provided a legal ``safe harbor'': Catholic Charities might 
     have been able to specialize in placing children with married 
     couples and thus avoid collision with state laws banning 
     orientation discrimination. After Goodridge, however, 
     ``marriage'' includes gay marriage, so no such haven would 
     have been available in Massachusetts.
       Precisely because support for marriage is public policy, 
     once marriage includes gay couples, groups who oppose gay 
     marriage are likely to be judged in violation of public 
     policy, triggering a host of negative consequences, including 
     the loss of tax-exempt status. Because marriage is not a 
     private act, but a protected public status, the legalization 
     of gay marriage sends a strong signal that orientation is now 
     on a par with race in the nondiscrimination game. And when we 
     get gay marriage because courts have declared it a 
     constitutional right, the signal is stronger still.
       The method and the mechanism for achieving protected status 
     may be different for orientation and for race. Even the 
     Massachusetts supreme court, for example, declined to rule 
     explicitly that orientation is a protected class, subject to 
     strict scrutiny. But in Massachusetts, the end result may be 
     similar. If state courts declare gay marriage a 
     constitutional right, they are likely to see support for gay 
     marriage as state public policy.
       On the cultural level, the declaration by a court that only 
     animus explains why anyone would treat two men differently 
     from a husband and wife represents an unfolding civil rights 
     logic that has real consequences. As Boston Globe columnist 
     Ellen Goodman put it, ``But if you give one church permission 
     to discriminate against gays, what's next? Permission to 
     discriminate against blacks/or Jews who want to adopt?''


                                End Game

       On April 15, the Boston Globe ran a story about three other 
     Catholic adoption agencies, in Worcester, Fall River, and 
     Springfield, that do not do gay adoptions. The story noted 
     that, for now, these agencies will not be punished for their 
     refusal. Constantia Papanikolaou, general counsel for the 
     state Department of Early Education and Care, said her agency 
     is holding off taking any action because the governor has 
     proposed legislation that would provide a religious exemption 
     for adoption agencies. ``We're going to wait and see how the 
     legislation plays out:,'' Papanikolaou said.
       The reprieve is likely to be short-lived. Observers, 
     universally say the religious exemption has no chance of 
     passage, and in a few months, Mitt Romney will no longer be 
     governor. What then? The Boston Globe story provides a clue: 
     ``Gary Buseck, legal director of the Gay & Lesbian Advocates 
     & Defenders

[[Page 10002]]

     in Boston, said his group realizes that Massachusetts will 
     have a new governor next year, and it expects that he or she 
     will aggressively enforce the state's antidiscrimination 
     laws.''
       Marc Stern is looking more and more like a reluctant 
     prophet: ``It's going to be a train wreck,'' he told me in 
     the offices of the American Jewish Congress high above 
     Manhattan. ``A very' dangerous train wreck. I don't see 
     anyone trying to stem the train wreck, or slow down the 
     trains. Both sides are really looking for Armageddon, and 
     they frankly both want to win. I prefer to avoid Armageddon, 
     if possible.''

  Mr. BROWNBACK. Mr. President, the reason I want to have that printed 
in the Record is for people to be able to see there is another side to 
this. When you redefine marriage and say it can now be between two 
people of the same gender, what happens when an institution says that 
we do not agree with that? Let's say a particular church says we do not 
agree with that; we believe that marriage is a union of a man and a 
woman. They can then actually be at risk legally in their state for 
having that definition and that will be seen as discriminatory, to the 
point you saw Catholic Charities doing adoptions in Boston having to 
leave because they were forced to recognize same-sex union adoptions 
and to provide those services. They said they disagree with this as a 
matter of their religious tenets. So now they are no longer able to do 
adoptions in Massachusetts.
  What happened to their religious freedom? That will be the same sort 
of path this will take. People will lose religious freedom if they hold 
a different view. If they say: We believe marriage is a union of a man 
and a woman, it is a basic tenet of our faith--which it is for many 
people and many faiths; this is a basic tenet, that marriage is a union 
of a man and a woman--now you are going to find that somehow 
discriminatory? Bigotry? They are going to be sued if they only 
recognize marriage as a union of a man and a woman.
  I hope my colleagues who want to vote against this start to think 
about that because this is the trajectory many of these things have 
taken when they get on this track.
  I promised my colleagues I would show what happened in other 
countries when they took on the issue of redefining marriage. We have 
other countries that have done this. The point I want to make is 
marriage is a fundamental institution. We need to support it and grow 
it. If you redefine marriage, this is not the way to support and grow 
marriage. This is not the way to support and grow marriage.
  Some will say there will just be more marriages that will take place. 
That is not the experience in other countries, particularly in northern 
Europe. They have redefined marriage, and it has not happened that way. 
You get fewer marriages and you get more children born out of wedlock. 
If you say, OK, we get more children born out of wedlock, the problem 
is you put children in a less than optimal environment. This goes 
against the Moynihan principle: You should always look at what you do 
to the next generation, and you should be as supportive as you can to 
the next generation.
  This chart shows, for the Netherlands, out-of-wedlock births and the 
campaign for same-sex marriage in the Netherlands. The Netherlands is a 
particularly interesting case because they had a very stable marital 
environment for a long period of time. In all of Europe, it was one of 
the most stable marital environments in which children were born in 
wedlock, up until a very recent period of time. Up until 1980 you still 
have less than 5 percent of children born out of wedlock. One of the 
lowest rates in all of Europe was in the Netherlands. Then, when they 
started to have this debate on same-sex marriage, a lot of things 
changed in the Netherlands, the same way as happens here.
  It goes in the court system. A small group of activists go in the 
court system and say: We can't change the overall body politic, but we 
will go into the courts and we will use the courts to change society 
that way. So we will get at them through the courts, the same play as 
happening here.
  In 1980 we have 5 percent of the total births out of wedlock. Then 
the first court cases start hitting in the late 1980s and you are at or 
around a little above 10 percent, the first court cases hitting on 
same-sex unions.
  You can just see that pattern skyrocket, the percentage of total 
births of children born out of wedlock from when you start redefining. 
You are speaking this into the culture and saying to the culture: 
Marriage isn't only the marriage of a man and a woman, it can be two 
men, two women, whatever we want to define it to be. We need to do 
this. It is something that is discriminatory otherwise.
  You can just see that thing take off, the number of children born out 
of wedlock.
  Again, if you say: That is just a consequence of it, I guess that is 
the way it is, the problem is, that is not the way it was, nor is it 
the way it needs to be, nor is it the way it should be for our children 
in the next generation. We should be strongly concerned about how that 
next generation is raised and the nurturing environment they are raised 
in. Recognizing people are going to have trouble in marriages--they 
are, but we still don't want to take that optimal design away. We want 
to encourage that optimal design. We know that is the place where it 
works the best.
  I want to show a chart to make a couple of points. Ever since 
proposals for same-sex marriage began to be debated, the out-of-wedlock 
birth rate in the Netherlands has soared. Same-sex marriage has 
increased the culture separation of marriage from parenthood in the 
Netherlands.
  Scandinavia is the area in the world that has the longest track 
record of same-sex unions. They have embraced it for the longest period 
of time. These are the countries, then, where we have the most 
developed data. This is the law being used to change the culture.
  I think I am paraphrasing Senator Moynihan--he was a great cultural 
commentator--a comment he made in one of his books. He wrote that the 
central conservative truth is that culture is more important than 
government. In other words, what your culture says it honors and 
dishonors is more important than government. That was central 
conservative truth.
  The central liberal truth is, you can use laws to change culture. 
Here you see the effort to use a law to change culture taking place. 
The system of marriage like same-sex registration partners established 
in the late 1980s has contributed significantly to the ongoing decline 
of marriage in this region. The rates for both first and second and 
later births to cohabiting couples have risen substantially. Instead of 
arguing that same-sex marriage encourages marriage among heterosexual 
parents, it is used as evidence that marriage is outdated. Where gay 
marriage finds acceptance, marriage has virtually ceased to exist in 
some areas.
  We have a chart where 80 percent of the first-born children, as I 
mentioned, were born out of wedlock. Is that the trajectory we want to 
go on? Is that where we want this society to go? Is that the sort of 
country we want to have in the future? Is that where we are willing to 
go?
  I think people are going to argue a whole bunch of different ideas. 
There is going to be a lot of blustering about this, but the basic 
question is pretty simple. Do you believe and do you support that 
marriage is a union of a man and a woman? Do you think that is the 
foundation of society or not? People are going to yell and scream a lot 
of things about some form of bigotry, or that this is being done for 
political purposes, Or this or that, or they are going to try to say: 
It doesn't hurt my marriage. I am just saying we have basic social data 
on this vast social experiment of redefining marriage. We know where it 
heads.
  I think if any of us really search in our own hearts we are pretty 
comfortable that if you redefine this institution you are unlikely to 
get more of it. You are more likely to get less of it.
  I hope people will ask the next question. Is this the best place to 
raise the next generation? Is this the best message to send on how to 
raise that next generation? I ask people to ask their own hearts--look 
at the data. We have the data on it, but ask in their own hearts 
because this is a big, deep, serious one. This is an important one.

[[Page 10003]]

  I respect my colleagues who have a different position. I respect 
people in the United States who have a different position on this 
particular issue. There are good people on all sides of this issue. But 
the data is what it is. People, if they just ask in their own hearts, 
they know the right answer to this particular topic, as tough as it 
might be. But this is an important one. It will be defined by us or by 
the courts.
  I will have additional information to present at a later date, but I 
suggest the absence of a quorum.
  The PRESIDING OFFICER. The clerk will call the roll.
  The assistant legislative clerk called the roll.
  Mr. BROWNBACK. Mr. President, I ask unanimous consent the order for 
the quorum call be rescinded.
  The PRESIDING OFFICER. Without objection, it is so ordered.
  Mr. BROWNBACK. Mr. President, I understand some of my other 
colleagues will be coming to the floor. I urge them to get to the floor 
to make statements. Tomorrow there will be more individuals coming in. 
It will probably get crowded. So if people want to make an opening 
statement, this will be an excellent time to do it.
  While we are waiting for individuals to come to the floor, I want to 
share some of the information we put together on this institution of 
marriage so we can use the time profitably while we have this debate on 
the floor.
  I want to talk about the issue of what happens to children in this 
institution of marriage. I believe I am saying some of the things my 
grandparents would say: Well, of course that is true, this kind of 
basic thought or idea that you get in a society. But I think there are 
things that need to be reiterated.
  Now we have social data in the United States to say what happens when 
you walk away from a fundamental institution, and one like marriage, 
that it has as much trouble as it has.
  I want to point to the number of children born out of wedlock in the 
United States and where we have been going with this data. In the 
1930s, 4 percent; 1950s up to 5.3 percent, now up to 34.6 percent.
  We have roughly a third of the children in the United States born to 
single moms. It is not that you cannot have a good child-rearing 
situation there, but, as we will show later on, it just gets much more 
difficult to raise that child. It is important that child be raised 
between a loving couple.
  I want to show the next chart, if we could, on this particular point. 
Developmental problems are less common in two-parent families. This is 
something I want to share. It is the sort of thing my parents would be 
looking at and saying: Of course, we know that is the case. But now we 
have the social data on it. You have single-parent families in the 
green, you have two-parent families in red. You see the lower half of 
class academically--it is twice as likely to be in that single-parent 
household; developmental delays, 10 percent more likely; emotional or 
behavior problems, more than twice as likely to have problems in that 
particular category as well, in that single-parent household.
  I want to show the next chart and show this: Nearly 80 percent of all 
children suffering long-term poverty come from broken or never-married 
families. I will cover this in more detail tomorrow because this is a 
product--partially, if not a majority product--of government policies 
on welfare.
  That penalizes people for getting married if they are in the welfare 
system.
  As you can see, nearly 80 percent of children suffering long-term 
poverty come from broken and never-married families. One of the two 
best ways known out of poverty in the United States is to get a job and 
get married. I will develop that thought more tomorrow. We are actual 
trying some innovative experiments here in Washington, DC, on what can 
be done and should be done to remove the marriage penalty from our 
welfare policies and programs.
  I see my colleague from Texas has joined us. I yield the floor.
  The PRESIDING OFFICER (Mr. Chambliss). The Senator from Texas is 
recognized.
  Mr. CORNYN. Mr. President, I appreciate the Senator from Kansas 
giving me a chance to speak on the marriage amendment. I know there is 
no one who cares more deeply or who has fought harder on this cause 
than the Senator from Kansas. I am glad to join him on the Senate 
floor.
  It has been kind of interesting to hear some of the comments that 
have been made by the majority leader's stated intent to go to the 
marriage amendment again this week and the kind of comments that some 
have made about that decision. One of our colleagues on the other side 
of the aisle was on one of the Sunday morning interview shows, ``Meet 
the Press,'' where he said:

       You know, I think about this--the world is going to Hades 
     in a hand basket. We are desperately concerned about the 
     circumstance relating to avian flu. We don't have enough 
     vaccines, we don't have enough police officers, and we're 
     going to debate for the next 3 weeks, I am told, gay 
     marriage, a flag amendment, and God knows what else. I can't 
     believe the American people can't see through this. We 
     already have a law, the Defense of Marriage Act. We have all 
     voted--not where I voted and others voted. Look, marriage is 
     between a man and a woman, and States must respect that. 
     Nobody has violated that law. There has been no challenge to 
     the law. Why do we need a Constitutional amendment? Marriage 
     is between a man and a woman. What is the game going on here?

  First of all, I would suggest to my colleague who made those 
statements this last Sunday that protection of traditional marriage is 
important. This is not an issue which we have raised gratuitously or 
out of thin air. This is a fight which really has been brought to the 
American people by those who would seek to use the courts to advance 
their agenda to call marriage between one man and one woman some form 
of discrimination or violation of their civil rights.
  So this is not an issue which we have taken up without provocation or 
without cause but one which I believe is a legitimate and important 
response to the challenges we have seen in the courts across our 
country, including most famously in Massachusetts but elsewhere in 
addition.
  Just to correct the misimpression of my colleague whose statements I 
just quoted, there are challenges to the Federal Defense of Marriage 
Act pending in a Federal district court in both Oklahoma and 
Washington.
  It is simply wrong to suggest that we are introducing this issue 
without provocation or without cause, and it is simply erroneous to say 
there have been no developments in the courts across our land that 
cause good people of good faith some legitimate concern about what the 
future of our marriage laws might be.
  Tomorrow, we will vote on an amendment to the Constitution that would 
define marriage as the union of one man and one woman. Constitutional 
amendments should obviously not be brought for light or insignificant 
reasons but, rather, to preserve some of the most fundamental 
principles of our way of life--and those principles deserving of the 
ultimate legal protection.
  The institution of marriage, notwithstanding some of the comments of 
some, I believe is one of those fundamental principles deserving the 
ultimate legal protection. It is arguably the fundamental building 
block of our society. Throughout human history, traditional marriage 
between a woman and a man has been viewed as the ideal. It is the ideal 
environment in which to raise children. It is the ideal environment in 
which to promote families, the most important institution in our 
society. And, in my view, it should be protected and preserved.
  I am not the only one who feels that way. The Federal Defense of 
Marriage Act, which defined marriage as between a man and a woman that 
the Senator mentioned in the Sunday morning talk show, passed the U.S. 
Senate by a vote of 85 to 14 in 1996, obviously indicating that this is 
not a partisan issue. It is not a sort of vocal minority that is saying 
this is something we need to do. It got overwhelming support in 1996.

[[Page 10004]]

  Moreover, legislators in 45 of 50 States have adopted State 
legislation generally known as defense of marriage acts. In recent 
years, the American people across the Nation have gone to the polls to 
support State constitutional amendments designed to protect marriage 
and have done so with overwhelming numbers. Voters in my State adopted 
a constitutional amendment in 2004 with 76 percent support. In fact, in 
the 19 States that have considered State constitutional amendments, all 
have passed, and with an average support of 71.5 percent. This year, 
seven more States will consider constitutional amendments preserving 
traditional marriage.
  You might legitimately ask, given all of this activity at the State 
level, why is there a need for a Federal constitutional amendment? 
Indeed, even with the Federal Government passing the Defense of 
Marriage Act in 1996, why do we need the added protection? The fact is, 
despite the overwhelming will of the American people, traditional 
marriage has been undermined by activist judges and continues to face 
challenge after challenge after challenge in State and Federal courts 
throughout the Nation.
  It is important to look back at what first signaled that traditional 
marriage was in jeopardy in the courts. It goes back to the decision of 
the U.S. Supreme Court, Lawrence v. Texas. The most remarkable thing 
about that decision is not the result but how the Court came to the 
result it reached. There is the case that struck down the antisodomy 
laws in Texas law.
  Indeed, it was widely anticipated that the Court would overrule the 
decision in Bowers v. Hardwick, which upheld the antisodomy law in 
Georgia. But in this case, the Court not only struck down this 
antisodomy law on equal protection basis--Justice Kennedy, writing for 
the majority, created a new constitutional right, which raised the 
specter of legal challenges to traditional marriage laws. That new 
constitutional right created in that decision was one that said you are 
free in one's intimate sexual and personal relationships such that the 
Constitution now prohibits any sort of restriction by legislation or 
official policy on those intimate relationships between adults.
  At the time, Justice Scalia rightly noted that the opinion ``leaves 
on pretty shaky grounds State laws limiting marriage to opposite-sex 
couples.''
  Within months of that decision, the Federal constitutional decision 
in Lawrence v. Texas was used by the Massachusetts Supreme Court as the 
basis to interpret its State constitution to require same-sex marriage, 
writing that ``no amount of tinkering with language will eradicate the 
stain of traditional marriage.''
  This almost seems surreal to me. The last thing I thought I would end 
up doing coming to Washington and to the Senate is that I would be 
standing here on the Senate floor having to defend the institution of 
traditional marriage. I thought some things were a given and there 
would be other issues that we would be arguing about and fighting about 
and debating about--the great issues of the day. But we are here 
because of the provocation of not only overly broad decisions made by 
the U.S. Supreme Court but essentially State courts now finding the 
license in other courts to say that traditional marriage laws are 
somehow unlawful discrimination.
  It is also important to note why this should be handled at the 
Federal level.
  I already mentioned that State voters, when given an opportunity, had 
readily passed State constitutional amendments, or Texas legislators, 
as in my State, readily would pass a statute. But we all know that 
under our Federal scheme of government, State laws, including State 
constitutional provisions, cannot withstand a decision by a Federal 
court, that the U.S. Constitution will not allow those State 
provisions, either of statute or constitution, to stand if indeed it is 
found to be in violation of the United States Constitution. That is the 
very real threat here which has already been realized in Nebraska's 
Federal court and which now is pending in at least two other courts.
  In the 108th Congress, as chairman of the Subcommittee on the 
Constitution, Civil Rights and Property Rights, I chaired three 
hearings on the subject of marriage. These included a hearing focusing 
on the statutes of the bipartisan Defense of Marriage Act, which I 
mentioned a moment ago; another studied whether an amendment to the 
Constitution was necessary at all; and a third that addressed the 
specific amendment language that had been introduced in the Senate and 
which is now the subject of the pending resolution. Through that 
process, we learned time and time again from legal experts across the 
political spectrum that the only way for Congress to permanently 
protect and preserve marriage against judicial activism is through an 
amendment to the U.S. Constitution.
  I think it is also important for people to understand, even when 
Congress passes by the appropriate supermajorities a resolution like 
this to amend the Constitution, that it also then has to go to the 
States, and three-quarters of the States have to ratify that resolution 
as well before it becomes a constitutional provision.
  Some have said that this issue is not sufficiently important to 
justify an amendment to the U.S. Constitution. But I would point out 
that the 27th amendment to the U.S. Constitution adopted in 1992 
provides that ``no compensation for Members of Congress shall take 
effect until an election of representatives shall have intervened.'' In 
other words, Congress can't give itself a pay raise without having to 
actually stand for election during an intervening period of time. I 
would humbly suggest that protecting the institution of marriage is at 
least as important as the pay provisions governing Congress.
  People can decide for themselves where it matches up on the spectrum, 
but it is at least as important as that. To suggest that somehow the 
Constitution is so sacrosanct that we cannot offer amendments to the 
Constitution is to deny government of the people, by the people, and 
for the people. This is our Constitution. It is the people's 
prerogative to say whether we will amend the Constitution, and if so, 
what goes in that provision.
  We already know there are some judges who are using their 
interpretive power under the Constitution to rewrite it or to amend it 
under the guise of interpretation. So the question is not whether it 
will be amended; the question is, Who will amend it? I believe we the 
people should reserve our rights to determine the laws that govern our 
society and that govern our families.
  Through the hearing process I mentioned a moment ago, I came to 
believe that a constitutional amendment was entirely appropriate. We 
know 2 years ago the Senate failed to overcome a filibuster against 
proceeding to the amendment by a vote of 48 to 50. That was 
unfortunate. Now we have another chance, yet some question whether we 
should take advantage of that opportunity, even accusing supporters of 
some type of political expediency in even raising this issue.
  The simple answer is that the institution of marriage continues to be 
under assault by an organized, coordinated campaign of legal activists 
seeking to quietly but methodically undermine this institution through 
lawsuits filed around the country. Since the 2004 vote, State courts in 
Washington State, New York, California, Maryland, and Oregon have found 
traditional marriage laws to be unconstitutional. As I mentioned a 
moment ago, a Nebraska judge has struck down a State constitutional 
amendment on the same basis, claiming that somehow, after more than 200 
years of our Constitution's existence, during which time we all assumed 
traditional marriage laws were sacrosanct, that somehow all of a sudden 
these judges have divined that, no, the Founding Fathers really 
intended to find that traditional marriage laws were discriminatory and 
unconstitutional. It would be laughable if it were not so serious.
  At the present time, nine States face challenges of their traditional 
marriage laws. Some challenges are in State court, and some are based 
on Federal constitutional claims. Even

[[Page 10005]]

others challenge the Defense of Marriage Act.
  Last week, I read in the New York Times that New York's marriage laws 
are now before that State's highest court, as well. Numerous other 
lawsuits have been filed and will continue to be filed across the 
Nation even as voters take to the polls in support of laws protecting 
marriage.
  Tomorrow, the Senate faces an important and necessary question: Do we 
believe that traditional marriage is important enough to deserve full 
legal protection? In my view, the answer to that simple question is a 
simple yes. Marriage must be protected by the Constitution, and the 
American people should preserve their right to choose for themselves 
how to define our society and not have invalidation of traditional 
marriage forced on them by activist courts.
  This amendment language would provide that protection and that 
reassurance. It would define marriage as the union of a man and a woman 
and would protect the American people against judicial activism and 
being forced to live in a country with laws that do not reflect their 
will. I urge my colleagues to support this measure and to move this 
important amendment to the Senate for full consideration.
  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. BROWNBACK. Mr. President, I ask unanimous consent that the order 
for the quorum call be rescinded.
  The PRESIDING OFFICER. Without objection, it is so ordered.
  Mr. BROWNBACK. Mr. President, I want to address a couple other issues 
on this marriage amendment and at the same time urge my colleagues who 
want to speak on this particular amendment to come to the Senate so we 
can have as fulsome debate as possible. If any Member comes to the 
floor, I will yield to them so they can get a chance to put their 
information forward.
  There has been a developing body of thought, and I think this is a 
very important one to look at, the issue of religious freedom that 
develops from redefining marriage. I have entered into the Record 
already an article by Maggie Gallagher catching quite a bit of interest 
because it is of particular concern. I will develop this more fully.
  It is becoming increasingly apparent that same-sex marriage poses a 
significant threat to religious liberties. Scholars on both the left 
and the right agree that same-sex marriage has raised the specter of 
the massive and protracted battle over religious freedom. Where courts 
impose the same-sex marriage regime as a constitutionally guaranteed 
right, a multitude of new religious liberty conflicts will inevitably 
arise at every point where the law touches marriage and is applied to 
individuals, businesses, nonprofits, and even churches and synagogues. 
Unfortunately, and especially in the era of Employment Division v. 
Smith, once a court has recognized the right to same-sex marriage, 
religious organizations are unlikely to find much relief in free 
exercise claims because of this decision of Employment Division v. 
Smith.
  Same-sex marriage proponents argue that sexual orientation is like 
race and that opponents of same-sex marriage are, therefore, like 
bigots who oppose interracial marriage. Once same-sex marriage becomes 
law, that understanding is likely to become controlling.
  Legally, same-sex marriage will be taken by courts as proof that a 
public policy in support of same-sex marriage exists, so in States with 
same-sex marriage, religiously affiliated schools, adoption agencies, 
psychological clinics, social workers, marital counselors, et cetera, 
will be forced to choose between violating their own deeply held 
beliefs and giving up government contracts, tax-exempt status, or being 
denied the right to operate at all. If a religious social service 
agency refuses to offer counseling designed to preserve the marriage of 
a same-sex marriage couple, it could lose its tax-exempt status. 
Religious schools would either have to tolerate conduct they believed 
to be sinful or face a cutoff of Federal funds. It is already 
happening, as we have seen in Massachusetts with Boston's Catholic 
Charities being forced out of the adoption business entirely rather 
than violating church teachings on marriage and family.
  Free speech could also be under threat as sexual harassment in the 
workplace principles are used by nervous corporate lawyers to draw 
speech prohibitions on the marriage issue. Fear of litigation will 
breed self-censorship. One expert predicts ``a concerted effort to take 
same-sex marriage from a negative right to be free of state 
interference to a positive entitlement to assistance by others.''
  Some people say the answer is conscious exemption, but no legislative 
exemption can offer the same protection to traditional religious groups 
as a constitutional amendment. As one of the religious scholars has 
pointed out, even to attempt to create legislative protections would be 
a staggeringly difficult and complex project. And what the legislature 
gives, it can take away later. That is what has been happening all over 
Europe. Protecting marriage now will spare us many intense religious 
liberty conflicts down the road.
  The lesson in this is clear. There is a lot more at stake in the 
battle over same-sex marriage than the marriage issue itself, important 
as that is. Our Nation's long tradition of religious liberty faces its 
greatest threat in a generation or more such that the very ability of 
religiously affiliated organizations to exist and operate is under 
threat.
  I hope my colleagues will take a serious look at this issue and 
people can look at it and say: Wait a minute, it will not really 
develop that you will have this take place. But that is what took place 
in Massachusetts, where you had a Boston-based group, Catholic 
Charities, that does adoptions, but within the Catholic Church they 
say: We do not agree with same-sex adoptions, as far as same-sex 
marriage adopting children, and we are not going to provide that 
service to same-sex couples because of the beliefs of our organization, 
the tenets of our faith. Then they were run out of Boston and out of 
Massachusetts, rather than be forced to practice something that was 
against the tenets of their faith.
  I don't think that is a route we want people to go or be forced to 
go, to give up the tenets of their faith in order to do something so 
basic as adoption, or in this case something so basic as performing 
marriages, like the one I attended on Saturday that was at a church. 
Are we going to say that churches which will not do same-sex couple 
unions cannot perform marriages at all because if they just perform 
them for heterosexual couples and not for homosexual couples, that is 
bigotry, that is against a fundamental right of people of same-sex 
unions, so if they are going to do any marriages, they must do all 
marriages?
  People need to think about the profound implications of recognizing 
this right as it moves on through the courts and the court system. I 
don't think that is the intent people particularly have or want to have 
or that we should have.
  I had printed in the Record an article entitled ``Banned in Boston. 
The coming conflict between same-sex marriage and religious liberty.'' 
That was wherein a scholar by the name of Maggie Gallagher, in quite an 
extensive article, an article that you start to recognize when we 
redefine a fundamental institution such as marriage--you get into 
issues and problems such as this which will take place.
  A couple of Members are arguing that the Defense of Marriage Act is 
sufficient. I don't think that at all does the job of defining and 
supporting the institution, the fundamental institution of marriage and 
protecting that.
  First, it is a statute. It is not a constitutional amendment. As 
such, as a Federal statute, it can be overruled and overturned by a 
court. We need to be able to have this at the constitutional level, 
where it is deciding fundamental constitutions or the ones being raised 
not at a statutory level. Define

[[Page 10006]]

that and develop that a little bit more somewhat later.
  I suggest the absence of a quorum.
  The PRESIDING OFFICER (Mr. Cornyn). 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. Without objection, it is so ordered.
  Mr. BROWNBACK. Mr. President, I understand Senator McConnell will be 
closing today's session. I wanted to finish with a point I made earlier 
today. I have talked about other countries and what took place when 
they redefined the institution of marriage. And it has a great deal of 
difficulty for this society. It results in fewer marriages. There was a 
letter released 2 years ago that was addressed to parliamentarians 
around the world debating same-sex marriage. It was done by a group of 
five Dutch scholars. This is one of the countries I have cited that has 
redefined marriage, saying that it can be same-sex unions. They were 
raising concerns about gay marriages and the negative effect on the 
institution of marriage in the Netherlands. It was published July 8, 
2004, in a leading Dutch newspaper:

       There are good reasons to believe the decline in Dutch 
     marriage may be connected to the successful public campaign 
     for the opening of marriage to same-sex couples in The 
     Netherlands.

  The letter signatories came from several academic disciplines, 
including social sciences, philosophy, and law. The scholars cautioned 
against attributing all of the recent decline in marriage to same-sex 
unions.

       There are undoubtedly other factors which have contributed 
     to the decline of the institution of marriage in our country. 
     Further scientific research is needed . . .

  They concluded:

       At the same time, we wish to note that enough evidence of 
     marital decline already exists to raise serious concerns 
     about the wisdom of the efforts to deconstruct marriage in 
     its traditional form.

  The reason I cite this is that there are going to be a number of 
people saying all you can find are going to be conservative scholars to 
say that this has had a negative impact on the Netherlands. That is not 
the case. They are saying things having a negative impact there. They 
noted in recent years there is statistical evidence of Dutch marital 
decline including ``a spectacular rise in the number of illegitimate 
births.'' That is their words. By creating a social and legal 
separation between the ideas of marriage and parenting, these scholars 
warn that same-sex marriages may make young people in the Netherlands 
feel less obligated to marry before having children. Publication of the 
letter of warning was accompanied by a front page news interview. In 
the interview, a Dutch law professor said that ``the reputation of 
marriage as an institution in Holland is in serious decline.'' ``The 
Dutch need to have a national debate on how to restore traditional 
marriage. The decision to legalize same-sex marriage, in my view, has 
been an important contributing factor to the decline in the reputation 
of marriage.''
  One of the letters is from a Dutch citizen who heads a research unit 
on culture and communications at Nottingham Trent University. He has 
done a comparative study of family life and sexual attitudes in the 
Netherlands and Britain. He is also acquainted with research on 
American marriage. He believes that gay marriage has contributed to the 
decline in the reputation of Dutch marriage. It is ``difficult to 
imagine'' that the Dutch campaign for gay marriage did not have serious 
social consequences, and he cites an intensive media campaign based on 
the claim that marriage and parenthood are unrelated.
  The Dutch scholars are not the only ones to assert that the 
institution of marriage has been weakened by legal and social 
recognition of same-sex unions. In January of this year, a French 
Government commission examining possible changes in French law 
recommended against legalizing same-sex marriage. It is not my custom 
to cite the French in the U.S. Senate. I often disagree if I do cite 
them. But listen to what they were recommending. This commission came 
out against legalizing same-sex marriage based on its examination of 
the impact of legalized same-sex marriage in Netherlands, Belgium, 
Canada, and Spain, the four countries where it is legal, as well as 
European countries. We have a French commission that looked at where 
these laws have taken other countries already. The French have not gone 
there yet. They are saying, let's study this, which I think would be a 
wise thing for us to do. Let's look and see what has happened in other 
countries, as the French have done. Their report--the parliamentarian 
report on the family and the rights of children--came out against a 
right to marriage for same-sex couples. This is certainly no 
conservative think tank group saying this. This is the French 
Government. The commission came to this conclusion when it considered 
the consequences for the child's development and the construction of 
his or her identity of creating a fictitious affiliation by law, two 
fathers and two mothers--this is their statement--which is biologically 
neither real or plausible. They were heard on this point and they 
failed to persuade a majority of the commission to support recognizing 
the rights of a child or marriage for same-sex couples.
  That is a French commission examining other European countries that 
have legalized same-sex unions saying this is not good for France or 
for the raising of the next generation.
  In addition to these sources, some of the most influential 
sociologists in Europe agree that same-sex marriage undermines the 
traditional institution of marriage, even if they welcome the change. 
So, in other words, they are saying we might welcome the change, but 
this is going to hurt marriage. They agree that same-sex marriage 
doesn't reinforce marriage, as many of its proponents argue but, 
rather, upends marriage and helps foster acceptance for a variety of 
other forms, such as single parenting, cohabitation, and multiple 
partner unions, which only serve to weaken traditional marriage. This 
is what happens when you move away from your standard of marriage being 
the union of a man and a woman. It weakens the institution and moves in 
a lot of other types of arrangements.
  Britain's Anthony Giddens, one of the most influential sociologists 
in all of Europe, wrote that modern marriage is being emptied of any 
meaning beyond the emotional bonding of adults, something he quotes as 
the ``pure relationship.'' This notion of the pure relationship is 
being widely used by European social scientists to explain why so many 
parents now avoid marriage. Having a child is an experiment in an adult 
relationship that could possibly lead to marriage, rather than a reason 
to get married in the first place. It is clear that the institution of 
marriage has been defined down. It is simply a shared affection between 
two adults.
  This is precisely how the advocates of same-sex marriage define 
marriage--no intrinsic connection to marriage. European sociologists 
say that a whole host of changes, like single parenting, cohabitation, 
and multiple partner unions, point to the unraveling of marriage as an 
institution designed to keep mothers and fathers together and for the 
sake of their children.
  German sociologists, Ulrich Beck and Elizabether Beck-Gernsheim, also 
highly contend that raising rates of parental cohabitation and out-of-
wedlock births indicate that marriage, while seemingly alive, is in 
fact dying. The old notions of marriage and family are giving way to 
domestic situations in which individuals make up their own rules. 
Individual choice hollows out the old institutions, such as marriage 
and family, that used to guide our choices. These authors actually 
embrace and celebrate the instability of the brave new family system, 
holding that family disillusion teaches children a hard, but necessary, 
lesson about our new social world.
  Is that the sort of message we want to send? It is the message that 
is coming through the courts if we don't define this legislatively. The 
work of Norwegian sociologist Keri Moxnes,

[[Page 10007]]

frequently used by European social scientists, is to put the movement 
in context. Moxnes welcomes same-sex marriage not as a way of ratifying 
marriage itself but as an innovation that affirms and advances 
marriage's ongoing decline. She defines marriage as being an 
increasingly empty institution.
  Is that the message we want to send? In the U.S, many sociologists 
are of the same opinion. One argues that these wrenching social changes 
disrupt conventional sexual and domestic relations and undermine 
traditional marriages, but also believes that all of these are signs of 
the decline of the traditional family. From same-sex unions, to births, 
to cohabiting parents, to mothers who are single by choice, release 
individuals from the constraint of traditional marriage.
  I want to conclude on that point to reaffirm what is really taking 
place here, and that is the redefining of a fundamental institution. We 
can say this is somehow a politicized debate, that it is not important. 
But from what we are seeing in countries that have taken up this 
debate, it is clearly important. It goes to the heart of the 
fundamental institution of marriage and weakens it further. It is an 
institution that we want to support, and this move destroys it further, 
takes it down further. That has been the research results that have 
taken place in Europe.
  This is a big debate. It is a big and important problem and issue. We 
should not kid ourselves about what this is about by saying we don't 
really need to do this now. If we don't do it and it is redefined by 
the courts, that is the track we are on--tearing down this institution 
around which we have built families. Is that what the American people 
want to do? We have seen them vote in 45 States saying, no, we want 
marriage as the union of a man and a woman.
  We should not kid ourselves. This is seriously about the future of 
the culture of the United States.
  Mr. President, I suggest the absence of a quorum.
  The PRESIDING OFFICER. The clerk will call the roll.
  The bill clerk proceeded to call the roll.
  Mr. McCONNELL. Mr. President, I ask unanimous consent that the order 
for the quorum call be rescinded.
  The PRESIDING OFFICER. Without objection, it is so ordered.


                             Cloture Motion

  Mr. McCONNELL. Mr. President, I send a cloture motion to the desk.
  The PRESIDING OFFICER. The cloture motion having been presented under 
rule XXII, the Chair directs the clerk to read the motion.
  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.
         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.

  Mr. McCONNELL. I ask unanimous consent that the live quorum required 
under rule XXII be waived.
  The PRESIDING OFFICER. Without objection, it is so ordered.

                          ____________________