The Congressional Record is a unique source of public documentation. It started in 1873, documenting nearly all the major and minor policies being discussed and debated.
“UNANIMOUS CONSENT REQUEST--H.R. 4437” mentioning the U.S. Dept of State was published in the Senate section on pages S5401-S5424 on June 5, 2006.
The publication is reproduced in full below:
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.
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 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 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 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. 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 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.
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 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 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.
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 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 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.
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 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.
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 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.
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:
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 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 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.
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.
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 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 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, 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.
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