Congressional Record (Bound Edition), Volume 152 (2006), Part 8 - MARRIAGE PROTECTION AMENDMENT--MOTION TO PROCEED

[Congressional Record (Bound Edition), Volume 152 (2006), Part 8]
[Senate]
[Pages 10023-10034]
[From the U.S. Government Publishing Office, www.gpo.gov]

MARRIAGE PROTECTION AMENDMENT--MOTION TO PROCEED

The PRESIDING OFFICER. Under the previous order, the Senate will
resume consideration of S.J. Res. 1, which the clerk will report.
The assistant legislative clerk read as follows:

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

The PRESIDING OFFICER (Mr. Sununu). The Senator from Colorado.
Mr. ALLARD. Mr. President, I ask unanimous consent that the time
today from 6 to 6:30 be under the control of the majority and from 6:30
to 7 o'clock be under the control of the minority.
The PRESIDING OFFICER. Is there objection?
Mr. LEAHY. We have no objection.
The PRESIDING OFFICER. Without objection, it is so ordered.
Mr. ALLARD. Mr. President, I ask that Larry Craig be added as a
cosponsor to S.J. Res. 1.
The PRESIDING OFFICER. Without objection, it is so ordered.
Mr. ALLARD. Mr. President, we are now talking about S.J. Res. 1, the
Protection of Marriage Amendment. We have an allocation of time that
has been set out for the Republican side.

[[Page 10024]]

Later on there will be an allocation, I understand, of the Democrats'
time.
I will allocate myself 20 minutes. Would the Presiding Officer notify
me when I have used 17 minutes of that?
The PRESIDING OFFICER. The Chair will notify the Senator.
Mr. ALLARD. Mr. President, respect for the democratic process compels
this Congress to protect traditional marriage in the face of a
coordinated effort to redefine marriage through the courts.
Marriage, the union between a man and a woman, has been the
foundation of every civilization in human history. It is incorporated
into the fabric of our culture and civic life. It is the platform on
which children, families, and communities are nurtured.
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.
As a result, I introduced S.J. Res. 1, an amendment to the
Constitution that simply defines marriage as the ``union of a man and a
woman,'' while leaving State legislatures the freedom to address the
question of civil unions.
Democracy and representative government are at the core of this
debate. In 2004 and 2005, voters in 14 Sates overwhelmingly passed
constitutional amendments protecting marriage. Today, 19 States have
constitutional amendments protecting marriage and another 26 have
statutes designed to protect traditional marriage. The will of the
people is clear.
Unfortunately, dissatisfied with the outcome of the democratic
process, activists have intensified their campaign to circumvent the
democratic process and redefine marriage through the courts. Currently
nine States face lawsuits challenging traditional marriage laws. Among
these lawsuits are challenges to State constitutional amendments passed
by an overwhelming majority of voters.
Recent decisions by activist judges not only fail to respect the
traditional definition of marriage, they also highlight a lack of
respect for the democratic process. The courts are driving a
redefinition of marriage contrary to democratic principles.
The process to amend the U.S. Constitution is the most democratic in
the world, requiring two-thirds of Congress and three-fourths of the
States to ratify. It is a process the American people can trust.
If we fail to define marriage, the courts will not hesitate to do it
for us.
My amendment reflects my belief that the institution of marriage is
too precious to surrender to the whims of a handful of unelected,
activist judges.
The will of the people should prevail.
Marriage is the foundation of every civilization in human history. As
I said before, the definition of marriage crosses all bounds of race,
religion, culture, political party, ideology and ethnicity. Marriage is
not a partisan issue. Marriage is embraced and intuitively understood
to be a union between a man and a woman by Republicans, Democrats, and
Independents alike.
As an expression of this cultural value, the definition of marriage
is incorporated into the very fabric of civic policy. It is the root
from which families and communities are grown. Marriage is the one bond
on which all other bonds are built.
Marriage is not some controversial ideology being forced upon an
unwilling populace 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 isn't. When it comes to same-gender couples there is a problem
of definition. Two women or two men simply do not meet the criteria for
marriage as it has been defined for thousands of years. Marriage is, as
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 that is
marriage--would be challenged, redefined or attacked. But we are here
today because it is.
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 officials. I am
not willing to surrender this issue to the courts.
I also believe 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 States.
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. If
marriage is redefined for anybody, it is redefined for everybody. 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 people.
Now is the time for Congress to fulfill its responsibility and send a
constitutional amendment to the States for ratification.
Marrige, the union between a man and a woman, has been the foundation
of every civilization in human history. This debate 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

[[Page 10025]]

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.
Mr. President, I have behind me a number of charts I would like to go
over for Members of the Senate. This is what the amendment is all
about:

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.

In this very simple-to-understand chart form I have laid out for
Members of the Senate exactly what happens when it is sent to the
States and what it does to the courts. The State and Federal courts,
what can they impose? They cannot redefine marriage. The courts cannot
go ahead and redefine civil unions or domestic partnerships. The courts
cannot grant rights or benefits of marriage. But it doesn't affect in
any way employee benefits offered by private businesses.
Then we go down and look at the legislatures. What can they do? They
can't redefine marriage. But they can deal with the creation of civil
unions or domestic partnerships--that is left up to the State
legislatures, granting the rights or benefits of marriage. Again, that
is left up to the State legislatures. Again, through the States, we
don't mandate anything that affects private businesses.
The next chart I would like to show to my colleagues in the Senate is
how America is weighing in on the issue of marriage. We have a map of
the United States here that clearly outlines those States where
amendments have passed--in the dark green. If we look at those results
from within the States, the State that passed with the least majority
was Oregon with 57 percent, and the largest majority--it looks like it
was in Mississippi: 86 percent. But the average margin of where States
have enacted the constitutional amendment is greater than 70 percent.
Then we see that marriage amendments are expected in 2006 in a number
of States throughout the country. The percentage of the voters who
support the idea of the definition of marriage is a large percentage, a
large margin.
Now I would like to go to our next chart to outline what the States
have done to protect traditional marriage through statutory and
constitutional defense of marriage acts. The blue lines show how the
States have acted on the definition of marriage as it was allowed to
occur through the defense of marriage acts. Obviously, we all recall
that in the Senate we passed the Defense of Marriage Act by a large
percentage and it passed the House by a large percentage. And it also
passed in many States with a large percentage, with 45 States ending up
passing the Defense of Marriage Act. The problem with the Defense of
Marriage Act is it will not hold up against State challenges. Those
court cases that have been brought forward could have an adverse impact
on what a large majority of State legislatures have said and what a
large majority of houses have said.
The red reflects what has happened in regard to a constitutional
amendment. We have 19 States that have passed those constitutional
amendments and a number of amendments are pending before the States.
Now let me look at the following chart, and this is the number of
States in which marriage laws have been challenged in court. Between
1992 and 1994, we had 5 cases that were challenged in court, and as
these cases have accumulated through the years, now, in 2006, we have
22 cases that have been challenged. So we have a significant threat
from the courts. This is an important issue to the American people, it
is an important issue to the Congress, and it is something that should
be addressed.
I believe that the institution of marriage and the principles of
democracy are simply 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 now yield the floor.
The PRESIDING OFFICER. The Senator has used 15 minutes.
The Senator from Kansas.
Mr. BROWNBACK. I believe under a previous agreement I am recognized
for a period up to 20 minutes; is that correct?
The PRESIDING OFFICER. There is no agreement. The majority controls
the 45 minutes remaining until the hour of 12 o'clock. The Senator from
Kansas is recognized.
Mr. BROWNBACK. I thank the Chair. I ask if you would let me know when
I have used 15 minutes of that time.
The PRESIDING OFFICER. Without objection, it is so ordered.
Mr. BROWNBACK. I thank my colleague from Colorado, Senator Allard,
for his carrying of this amendment. When the issue first surfaced a
couple of years ago, Senator Allard was the first one to put forward a
constitutional amendment on the issue of marriage, a very simple one to
define the union of marriage as a man and a woman.
The issue has taken many twists and turns since that time. The
institution itself has been weakened over a number of years, and this
is an effort to help it, help strengthen that institution and to have
the definition of this institution done by legislative bodies and not
by courts.
This is a very simple amendment. It is hard for me to understand why
anybody would oppose it when 45 of 50 States have defined marriage as
the union of a man and a woman, and this simply says that if States
want to define it differently, they have to go through the legislative
process and not the courts, so that the Court can't force it. It must
be done by a legislative body. And if some States decide to do that,
then that is provided for in this amendment. So the five States that
have done something different are provided for in the amendment. Yet
the basics of it say marriage is the union of a man and a woman, as it
has been as an institution for thousands of years.
So I thank my friend from Colorado for carrying this. It is a
difficult topic. I would never have dreamed in my life, in coming to
the Senate, that this would be a difficult topic, one that would be
debated. When I came into the Senate in 1996, this was not discussed at
all in the campaigns. It was not discussed in the campaign in 1998. It
has only been of a recent vintage that this has come forward. Yet it
has come forward because of the importance of the topic.
I want to discuss two points. This issue is going to be defined by
the courts or the legislative bodies, period. We seek to have it
defined by legislative bodies. We think that is the appropriate thing
when you are dealing with such a fundamental institution of society as
marriage. It should be defined by the people and the legislative bodies
and not the courts. The situation in Europe, as it evolved, went
through the court process. Therefore, we seek for these changes, if
they are to be made, to go through the legislative body. I believe that
marriage is such a foundational institution it should be defined as the
union of a man and woman, and I will cover that in my discussion.
No. 2, this is important on how we raise the next generation in the
United States. That is why we have favored the institution of
traditional marriage, the union of a man and a woman, because we know
in all the social data in all societies at all times that the best
place to raise children is in the union of a man and a woman and in
that sacred institution is the best place to raise your next
generation, with that bonding together for life and children raised in
that setting.
That is something for which we have got social data, but also we know
that in our hearts. We know, sitting here right now, that, yes, that is
the best place. I know that. I know that in my own heart. Yet I want to
take us through what has happened to this weakened institution of
marriage, what has happened then to our next generation. Here I am
using the Moynihan principle. Senator Moynihan, who was in this body,
since deceased,

[[Page 10026]]

had a basic principle that he looked at. One of the key things we
should look at is how we raise the next generation. It is something
that any legislative body should be most concerned about because it
affects what you are going to do in the future. It affects what the
country is going to be in the future. And so we should maximize and
look with great intensity at how you are impacting that next
generation. I have to say, with the weakening of the institution of
marriage over the past 30 to 40 years, with this redefining of
marriage, which would define marriage out of existence, which is what
we have seen in other countries, you are going to harm your next
generations and succeeding generations that you raise.
I want to back that up. I am going to go through a series of charts
to paint the picture of what has happened to marriage in America today
and why we would encourage the institution of marriage as the union of
a man and a woman.
This doesn't need explanation. You can see where we are. With a 4-
percent rate of out-of-wedlock births in 1930, we are at about a third
of the children in the United States today born to unmarried women.
That is not to say you cannot raise great children in this setting
because you can. A number of women struggle heroically to raise
children, and good children, in this setting, as they can do. As I will
show in these charts, it becomes far more difficult, and that is why
institutions such as this and across the States, across the country,
favor traditional marriage because you get more adults per child
involved in that child's life and they are bonded together. They are
thick. The blood is thick. They care for each other and they work to
raise this child as my wife and I are working together to raise our
children. It is tough. It is tough raising children. You need more
adults per child, and you need adults who are committed for life so
that that child does not have to worry about what is going to happen
tomorrow or what is going to happen in the future. They know there are
two parents who love that child unconditionally and are committed to
that child unconditionally and they are going to work for that child
and that is why we favor the institution of marriage. Yet you can see
we are getting fewer and fewer children raised in that type of
situation.
Now, then I mentioned, well, OK, you can raise good children in a
single-parent household. Yes, you can. But the situation becomes more
difficult. Developmental problems are less common in two-parent
families. Lower half of class academically, as you can see in the
green, is not as high in two-parent families; developmental delays, 10
percent. You are looking at, again, almost double the situation, and
you are looking at double the problems with emotional behavior
problems, single-parent versus two-parent families. That doesn't mean
that you don't have problems in two-parent families. You do. It is just
your numbers go down. So when you are looking at this in a
macrosituation, as a Government, you are saying we want more children
in these two-parent households.
The next chart shows that nearly 80 percent of all children suffering
long-term poverty come from broken or never married families. This is
something I want to develop a little further as well. We have a
Brookings scholar, Ron Haskin, who testified at a hearing I hosted
about welfare reform and the need to encourage marriage for those who
are receiving welfare. And he says this:

There are only two ways known to man and to God to reduce
poverty. No. 1 is work and No. 2 is marriage.

Here's what I want to show is if people will get married and stay
married the number of children suffering in long-term poverty goes down
substantially, if you will do that. And I want to develop this a little
bit further.
Children in poverty--this is in the year 2000. You can see, if a
child has been a child of a first marriage, less than 12 percent in
poverty. You can see, if a child is in a situation where the mom has
never married, 67 percent of your children in poverty come in that
situation. Again, that is not casting aspersions on anybody. It is
simply saying these are the facts of what happened.
Now, it is a bit of a sidebar, but it points to the policy impact of
harming marriage. In other words, if we take policies that are harmful
to marriage, it hurts children and it hurts marriage. If we take this
policy move of defining marriage out of existence, saying it can be any
two or more people who care for each other, it will fundamentally hurt
your institution of marriage by a policy move.
Now, I want to reflect a policy move we did in welfare. In welfare,
basically, we said--it is a very busy chart--we said to people if you
get married, we are going to cut your welfare support. If you get
married, we are going to cut your welfare support. What this shows are
the various welfare programs in the country and it is those when you
are going from $20,000 income per year, very low, to $40,000, which is
where you get if two people get married, and I will develop this
further, you fall off into the abyss as far as support you get from
child care development funds, women and infant children, Federal
housing, food stamps, all these things, you fall off the cliff to the
point that you have an effective tax rate, if you get married and your
income gets to $40,000 by being married, an 88-percent maximum tax rate
for you getting married in the welfare system. Therefore, it is no
wonder that the people who get married are much more in the upper
income and much less in the lower income.
This is a stark chart that should scare us all. This is income levels
to percentage unmarried. And you can see at the lower income level, you
are up as high as 70 percent not married, not getting married. Our
public policies say, if you get married, we are going to throw you off
welfare, and so fewer people get married. And it has an impact.
I want to show this final one quite quickly. This is the effective
tax rate, maximum highest tax rate of you getting married on welfare
and it is 88 percent, the impact of divorce on income of families with
children. Again, I want to hit this pretty fast. When families
separate, it drives income down, hurts children generally, although not
in all situations, but I am painting the macropicture.
Now, what has happened to our children in this society since, say,
1960. The number of children--I showed an earlier chart--about a third
are born out of wedlock. In the 1940s, it was about 4 percent. You can
look at 1960, the number of children, either born out of wedlock or in
previous years the parents were divorced, in 1960, we are up to 16, 17
percent, and today you are looking at over half. In America today,
about half of the children under age 18 will spend a significant
portion of their life in a single-parent household. Again, you can
raise good children in that setting, but the numbers start moving
against you.
OK. What does that have to do with same-sex marriage. The issue is we
are looking at the policy choice of why we define marriage as the union
between a man and a woman or any sort of grouping. The experience in
other countries has been, when you redefine marriage broadly and you
broaden it and say it can be any type of relationship between two or
more people, you get fewer marriages and you hurt your children. That
has been the situation.
I will go to several other countries that have redefined marriage,
defined marriage out of existence. In the Netherlands, since proposals
for same-sex marriage began to be debated, the out-of-wedlock birthrate
has soared. It was a fairly stable country in out-of-wedlock births and
was at low rate.
We will show in the next chart the same-sex marriage union, and the
discussion, said to society: It really does not matter. The marriage
institution is not a sacred institution; it is just whatever we define
it to be. That tradition is tradition. We are going to go a different
way.
What happened to out-of-wedlock birthrates? You can see the situation
in the Netherlands, which is particularly important because it was one
of the lowest out-of-wedlock birthrate countries in Europe for a number
of

[[Page 10027]]

years, shows that until 1980, below 5 percent of the population was
born out of wedlock. When we get the court cases which we have in the
United States today saying marriage should be redefined, we see the
impact, as well as a Supreme Court case that rules against marriage
being the union of a man and a woman. Then we get symbolic marriage
registration, registered partnership, same-sex unions, and now we are
up to 35 percent as seen in this skyrocketing chart.
One can say, that is the way it is, this number puts children in more
disadvantaged situations, which is where our concerns should be, as to
how you raise that next generation.
I will show another chart. We not only know this in the Netherlands
but we know from Scandinavian countries, the Nordic countries that
redefined marriage, experiences in Scandinavia and the Netherlands make
it clear that same-sex marriage could widen the separation between
marriage and parenthood here in the United States.
We know in some Nordic countries, you have counties now where 80
percent of the first-born children are born out of wedlock, and two-
thirds of the second children are born out of wedlock. That has a
significant impact, I argue, a devastating impact, on how that next
generation is raised, given the difficulty of raising children in that
one-parent union.
So if we redefine marriage, and define it downward, far less
heterosexual marriages will be the broad policy impact of doing this.
That has been the experience in other countries. You get more children
raised in a sub-optimal atmosphere and you will have more difficulties
with that next generation of children. This is important. This is
critical.
I hear my colleagues complain, important issues? I remind my
colleagues we spent 2 weeks before break on immigration, which is a
critical topic, and we will take up the budget this next week, another
a critical topic, yet I don't think one can look at an institutional
question more profound, more important and active than what is taking
place right now on the issue of marriage.
Marriage is a foundational institution. If we get more of it, we will
have more stronger, healthier children, raised in better situations for
the future of the country. If we get less of it, such as what this
policy decision would do if we do not define marriage as a union of a
man and a woman, we will have more problems on a trajectory we are
already headed on. The institution of marriage has been weakened in the
United States.
The institution of marriage has been weakened over the past 40 years.
But the answer is not to kill it. The answer is to strengthen it. And
it takes steps like the commonsense approach Senator Allard from
Colorado is putting forward, defining marriage as a union between a man
and a woman, saying only State legislatures, not the courts, can
redefine it another way.
That should please everyone. Yet, I am afraid many of my colleagues
on the other side of the aisle are going the opposite and claiming some
sort of hyperbole about this being bigotry. It is not. It is people
deeply concerned about the future of the country and the future of the
next generation, concerned that they will say it is just politics. It
is not. You have 45 of 50 States that have defined marriage as a union
of a man and a woman and have spent significant resources to define and
support the institution of marriage because of its importance to the
society and to the Republic. This is a key, important debate.
I am delighted the leadership is calling this up. I hope my
colleagues on the other side of the aisle will support it.
With that, I yield the floor.
The PRESIDING OFFICER. The Senator has used 17 minutes.
The Senator from Colorado.
Mr. ALLARD. Mr. President, I compliment the Senator from Kansas for
his tremendous effort and work on this very important issue. I know he
has held hours upon hours of committee hearings and meetings to
investigate with social scientists the impact of marriage on American
lives and how it impacts the family.
I, for one, greatly appreciate the Senator's effort and support. He
truly has been a partner in this effort to protect marriage. I
appreciate his hard work. I recognize that in a public way.
I ask unanimous consent to have printed in the Record an article
published by the Heritage Foundation, written by Mr. Ed Meese, titled
``Marriage Amendment Protects Federalism,'' and a Statement of
Administration Policy on the Senate Joint Resolution on the Marriage
Protection Amendment, and a letter I have received from Mitt Romney,
Governor of the Commonwealth of Massachusetts, in which he made a
couple of statements that I will share with my colleagues.
First, he states in this letter:

Americans are tolerant, generous, and kind people. We all
oppose bigotry and disparagement, and we all wish to avoid
hurtful disregard of the feelings of others. But the debate
over same-sex marriage is not a debate over tolerance. It is
a debate about the purpose of the institution of marriage.

It goes further to talk of his experiences as Governor for the State
of Massachusetts. He says:

. . . We are beginning to see the effects of the new legal
logic in Massachusetts just two years into our state's social
experiment. For instance, our birth certificate is being
challenged: Same sex couples want the terms ``Mother'' and
``Father'' replaced with ``Parent A'' and ``Parent B.''

If the Senate will allow me to put this in context, I think the
significance of his message is that marriage is being minimalized. When
we minimize marriage, we minimize its significance to society. As a
result of that, our children will suffer.
I thank the President for his support. I also thank Governor Mitt
Romney for his support.
I ask unanimous consent these be printed in the Record.
There being no objection, the material was ordered to be printed in
the Record, as follows:

Marriage Amendment Protects Federalism

(By Edwin Meese III)

July 12, 2004.--In our system of law, the powers of
government are divided between the federal and state
governments. The framers rightly left marriage policy, as so
many other things, with the states.
Yet the fundamental definition of marriage is no mere
policy issue. We're talking about the very integrity and
meaning of one of the primary elements of civil society.
Nor is this a matter for state-by-state experimentation.
Society isn't harmed when high-tax states live side by side
with low-tax states. The market adjusts to the inconsistency.
Not so with marriage. A highly integrated society such as
ours--with questions of property ownership, tax and economic
liability, inheritance, and child custody crossing state
lines--requires a uniform definition of marriage.
In a free society, certain fundamental questions must be
addressed and settled for the good of that society. States
can't impair the obligation of contracts, or coin their own
money, or experiment with forms of non-republican government.
We learned the hard way that the nation could not endure half
slave and half free.
If marriage is a fundamental social institution, then it's
fundamental for all of society. As such, it is not only
reasonable but obligatory that it be preferred and defended
in the law and, if necessary, protected in the U.S.
Constitution.
This doesn't mean that marriage must be completely
nationalized or should become the regulatory responsibility
of the federal government. Policy decisions concerning
questions such as degrees of consanguinity, the age of
consent, and the rules of divorce should remain with the
states.
The wisdom of extending certain benefits that stop well
short of marriage--that don't undermine the distinctive
status of marriage--are policy questions that should be the
responsibility of state legislatures.
But we must protect the integrity of the institution as
such by defining the societal boundaries and determining the
limits beyond which no part of society can go.
A constitutional amendment that defines marriage would
protect the states' capacity to regulate marriage by
sustaining it as an institution. In order to guard the
states' liberty to determine marriage policy in accord with
the principles of federalism, society as a whole must prevent
the institution itself from being redefined out of existence
or abolished altogether.
____

Statement of Administration Policy

s.j. res. 1--marriage protection amendment

(Senator Allard (R) Colorado and 31 cosponsors)

The Administration strongly supports Senate passage of the
Marriage Protection

[[Page 10028]]

Amendment. Recent court decisions remind us that when
activist judges insist on redefining the fundamental
institution of marriage for their States or potentially for
the entire country, the only alternative left to make the
people's voice heard is an amendment to the Constitution.
Without a constitutional amendment, judges and local
officials could continue to attempt to redefine marriage. The
Administration believes that the future of marriage in
America should be decided through the democratic
constitutional amendment process, rather than by the court
orders of a few. The Administration urges both houses to pass
the Marriage Protection Amendment and submit it to the States
for ratification.
____

The Commonwealth of Massachusetts, Executive Department,
State House,
Boston, MA, June 2, 2006.
Senator Wayne Allard,
Dirksen Senate Office Building,
Washington, DC.
Dear Senator: Next week, you will vote on a proposed
amendment to the United States Constitution protecting the
institution of marriage. As Governor of the state most
directly affected by this amendment, I hope my perspectives
will encourage you to vote ``yes.''
Americans are tolerant, generous, and kind people. We all
oppose bigotry and disparagement, and we all wish to avoid
hurtful disregard of the feelings of others. But the debate
over same sex marriage is not a debate over tolerance. It is
a debate about the purpose of the institution of marriage.
Attaching the word marriage to the association of same-sex
individuals mistakenly presumes that marriage is principally
a matter of adult benefits and adult rights. In fact,
marriage is principally about the nurturing and development
of children. And the successful development of children is
critical to the preservation and success of our nation.
Our society, like all known civilizations in recorded
history, has favored the union of a man and a woman with the
special designation and benefits of marriage. In this
respect, it has elevated the relationship of a legally bound
man and woman over other relationships. This recognizes that
the ideal setting for nurturing and developing children is a
home where there is a mother and a father.
In order to protect the institution of marriage, we must
prevent it from being redefined by judges like those here in
Massachusetts who think that marriage is an ``evolving
paradigm,'' and that the traditional definition is ``rooted
in persistent prejudices'' and amounts to ``invidious
discrimination.''
Although the full impact of same-sex marriage may not be
measured for decades or generations, we are beginning to see
the effects of the new legal logic in Massachusetts just two
years into our state's social experiment. For instance, our
birth certificate is being challenged: same-sex couples want
the terms ``Mother'' and ``Father'' replaced with ``Parent
A'' and ``Parent B.''
In our schools, children are being instructed that there is
no difference between same-sex marriage and traditional
marriage. Recently, parents of a second grader in one public
school complained when they were not notified that their
son's teacher would read a fairy tale about same-sex marriage
to the class. In the story, a prince chooses to marry another
prince, instead of a princess. The parents asked for the
opportunity to opt their child out of hearing such stories.
In response, the school superintendent insisted on ``teaching
children about the world they live in, and in Massachusetts
same sex marriage is legal.'' Once a society establishes that
it is legally indifferent between traditional marriage and
same-sex marriage, how can one preserve any practice which
favors the union of a man and a woman?
Some argue that our principles of federalism and local
control require us to leave the issue of same sex marriage to
the states--which means, as a practical matter, to state
courts. Such an argument denies the realities of modern life
and would create a chaotic patchwork of inconsistent laws
throughout the country. Marriage is not just an activity or
practice which is confined to the border of any one state. It
is a status that is carried from state to state. Because of
this, and because Americans conduct their financial and legal
lives in a united country bound by interstate institutions, a
national definition of marriage is necessary.
Your vote on this amendment should not be guided by a
concern for adult rights. This matter goes to the development
and well-being of children. I hope that you will make your
vote heard on their behalf.
Best regards,
Mitt Romney,
Governor.

Mr. ALLARD. I yield to the Senator from Pennsylvania, who has been a
strong leader and who has put in a large amount of effort in trying to
protect the institution of marriage.
The PRESIDING OFFICER. The Senator from Pennsylvania.
Mr. SANTORUM. Mr. President, I thank and congratulate the Senator
from Colorado for his terrific work on this issue, as well as the
Senator from Kansas, Mr. Brownback, for his great work in the committee
in moving this constitutional amendment forward.
This is a very difficult debate for a lot of people. It is very hard,
sort of sad in some respects, that we are here talking about the issue
of marriage, that talking about marriage is somehow a difficult debate.
But it is for a lot of people. I know in many meetings of our
colleagues when the issue of marriage comes up, heads drop. It is an
issue that people feel uncomfortable talking about, something that
maybe in some respects they feel like, Why is this even an issue?
That is a good question. Why is it an issue? I will talk about that
in a minute.
There is a foundational question I would like to talk about that up
until a couple of days ago I was not planning to talk about, which is,
Why are we doing this now? This is the big buzz in the media. Oh, this
is being brought up for political purposes; and this is all about
politics and has nothing to do with the substance of the matter, and
the media--which loves to pawn off issues and give spin to issues--has
adopted this approach.
As Senator Allard would affirm, we have been considering now for
several months what the best timing would be to bring this legislation
up. We had a very forceful voice being heard from the American public.
In fact, there is a chart of all the States that approved
constitutional amendments in the last election of 2004. We are now up
to 19 States in the country that have spoken; the people have spoken in
those States.
There was a lot of momentum coming out of the 2004 election, so when
we reconvened in 2005 we thought maybe this was a good time to bring it
up, now that we have just had an election. We thought, in looking at
this, it would be better if we had more court activity between the
election and when we bring this amendment up. That, really, the issue
is, as we have heard repeatedly in the Senate, we are trying to bring
about a decision on marriage in this country through a democratic
process.
I can't think of anything more democratic involving more people than
a constitutional amendment. It takes two-thirds of this House, two-
thirds of the other House and three- quarters of the States; 38 States
have to ratify this amendment. Talk about a public debate where there
is huge public input across America. The constitutional amendment is
the way to do it. It is the most democratic way of making a decision on
anything in this country.
We thought it would be a good juxtaposition to see further court
erosion, further decisions made by courts to erode the public's will on
the issue of marriage. I say the ``public's will'' only because we have
19 States and many others that have said what there really is with
respect to marriage. So we are debating, almost month to month, and we
have had conversations, Is this the right time?
We had a Nebraska decision which has been talked about where a
Federal court overturned the State constitutional amendment in the
State of Nebraska. There was a case in Washington State. Washington
State is an interesting State because, unlike Massachusetts, there is
no residency requirement for marriage. Any couple from anywhere in the
country can go to Washington and get married if the Supreme Court of
Washington were to overturn their statute. Washington so far has not
issued their opinion. They have had the case for 15 months and for some
reason or another they have not decided to decide. We were waiting,
trying to see if this was an appropriate time.
Last year we decided that we were not going to wait around for courts
and we set this date for the first of June. That is why we are here
today--not for any political reason. If it was purely politics, we
would be debating this in September. We are debating it in June because
we thought we would have 3 or 4 days as opposed to being compressed to
1 day in September. So we are here to give this the proper attention
this vitally important issue deserves.
The other question that I did want to talk about is, How did we get
here, not

[[Page 10029]]

why are we doing it now, but how did this issue come about? There were
a couple of States that were playing around with this issue for a
while--Vermont and Hawaii. But the issue really got jump-started with
the court decision--not surprisingly, a big court decision--the court
decision that occurred in Washington with the United States Supreme
Court is the Lawrence v. Texas case.
Lawrence v. Texas opened the floodgates for a variety of different
litigation going across this country using, now, a constitutional right
established by the United States Supreme Court in Lawrence. It was a
seminal decision, there is no question about it.
We have a classic example of the U.S. Court forcing its will on
establishing a right and then giving other courts the right or the
ability to then project its power on to the people, to make decisions
and force decisions, force legislation, as in the case of
Massachusetts, onto the people.
I want to talk about that decision because I think it is important,
but I want to talk about the decision before that. Just a few years
ago, 15 years before Lawrence v. Texas was decided, a similar case was
decided, Bowers v. Hardwick. I want to take a look at Justice White who
wrote for the majority in Bowers, saying sodomy laws were
constitutional, that moral laws passed by the States dealing with
sexuality were, in fact, constitutional. There was no constitutional
right that barred States and the public from regulating in this area.
He said:

The right pressed upon us here [this is what the litigants
in the Bowers case were arguing] has no similar support in
the text of the Constitution, it does not qualify for
recognition under the prevailing principles for construing
the 14th amendment. Its limits are also difficult to discern
. . .

This limit of consensual sexual activity being a constitutional right
which was made by the litigants, saying we have the right as individual
adults under the Constitution to any kind of sexual behavior that we
desire and the State cannot limit us.
He said:

Its limits were difficult to discern . . . And if
respondent's submission is limited to the voluntary sexual
conduct between consenting adults, it would be difficult,
except by fiat, to limit the claimed right to homosexual
conduct while leaving exposed to prosecution adultery,
incest, and other sexual crimes even though they are
committed in the home. We are unwilling start down that road.

What the Court said here was that if you open up the standard, the
legal standard, if you change it for a constitutionally protected
activity from that activity within marriage to that activity between
consenting adults--and that was the decision here, change the standard
from a Constitution that protects the marital union from State
intrusion to consenting adults with respect to homosexual activity--in
this case, the Court said: No, we can't go there. Because only by fiat
could we then limit other activity beyond that.
Let's fast forward to shortly before the Lawrence v. Texas decision.

If . . . you have the right to consensual sex within your
home, then you have the right to bigamy, you have the right
to polygamy, you have the right to incest, you have the right
to adultery. You have the right to do anything.

That comment has been reprinted probably 100,000 times in the last
few years as an outrageous comment made by a U.S. Senator. It was the
same comment that was made by Justice White in the majority opinion.
Let's fast forward a few months after that, Justice Scalia in the
dissenting opinion in the Lawrence v. Texas case:

State laws against bigamy, same-sex marriage, adult incest,
prostitution, masturbation, adultery, fornication,
bestiality, and obscenity are likewise sustainable only in
light of Bowers' validation of laws based on moral choices.
Every single one of these laws is called into question by
today's decision; the Court makes no effort to cabin the
scope of its decision to exclude them from its holding.

What he is saying is that now that road which Justice White and the
Court back in 1986 refused to go down, this Court in Lawrence v. Texas
had headed us down that road.
Justice Scalia went on to say:

Today's opinion dismantles the structure of constitutional
law that has permitted a distinction to be made between
heterosexual and homosexual unions, insofar as formal
recognition in marriage is concerned. If moral disapprobation
of homosexual conduct is ``no legitimate state interest'' for
purposes of proscribing that conduct; and if, as the Court
coos (casting aside all pretense of neutrality), ``[w]hen
sexuality finds overt expression in intimate conduct with
another person, the conduct can be but one element in a
personal bond that is more enduring,'' what justification
could there possibly be for denying the benefits of marriage
to homosexual couples exercising ``[t]he liberty protected by
the Constitution.'' Surely not the encouragement of
procreation, since the sterile and the elderly are allowed to
marry. The case ``does not involve'' the issue of homosexual
marriage only if one--

And they are quoting the majority opinion again because the majority
opinion said this doesn't deal with marriage, Scalia says this case
does not involve the issue of homosexual marriage--

entertains the belief that principle and logic have nothing
to do with the decisions of this Court.

The fact is, principle and logic have everything to do with judicial
decisions. That is the problem with them. That is why they are
different from legislative decisions. You see, when a court makes a
judicial decision, they do so based on a judicial foundation that has a
logical and rational basis to it and logical consequences. The logical
consequence to the Lawrence v. Texas case is the next case, not a
Supreme Court case before the U.S. Supreme Court but before involving
Massachusetts.
What Massachusetts did was the logical thing from Lawrence v. Texas.
In fact, they cite Lawrence v. Texas 5 times in the main opinion and 11
times in the combined majority opinions. It is the basis upon which
they build their decision. Because unlike the majority opinion in
Lawrence v. Texas which says this has nothing to do with marriage, it
had everything to do with marriage.
The interesting thing about the Lawrence v. Texas decision--and this
goes even more to judicial activism--they could have decided the
Lawrence v. Texas decision for the plaintiffs in that decision. They
could have found that statute unconstitutional. And in fact, had they
done so--and in fact, they did in part of their opinion; they found it
unconstitutional under equal protection grounds--had they limited their
opinion to that, I would have agreed with the decision. I think the
Texas statute probably was unconstitutional under equal protection
grounds. And so when they started the decision out and they said: This
is unconstitutional because of equal protection, I said that is right.
Here is what the court did and, unfortunately, what courts
increasingly do. While we are here, we are going to establish a new
constitutional right. While we are here, since we have the opportunity,
since this case is before us, we are going to be activist jurists, and
we are going to create a whole new body of law that will have huge
ripples throughout society. So they did. They didn't have to, but they
did. We are now debating this amendment because of it. They have this
ripple effect which we are seeing throughout courts throughout the
country, Federal as well as State.
Here in the Goodrich decision, it says:

It is clear from the quote below that the Goodrich decision
was considered the ``logical next step.''
Our concern is with the Massachusetts Constitution as a
charter of governance for every person properly within its
reach. ``Our obligation is to define the liberty of all, not
a mandate of our own moral code.''

There they were quoting Lawrence v. Texas. It went on to note that
the Lawrence case ``specifically affirmed that the core concept of
common human dignity protected by the Fourteenth Amendment to the
United States Constitution precludes government intrusion into the
deeply personal realms of consensual adult expressions of intimacy and
one's choice of an intimate partner. The Court also reaffirmed the
central role that decisions whether to marry or have children bear in
shaping one's identity.''

[[Page 10030]]

The ``logical next step,'' so the Goodrich decision is very much in
conformity with the Lawrence v. Texas decision. That is why we are
here. We are here because of judicial activism.
Our plea to the Members of the Senate is to allow the people to make
the decision with respect to this foundational institution of our
country--the traditional family, marriage--that courts who just happen
to be deciding a case that didn't need them to decide it this way or
use this logic or rationale, that courts just can't decide that they
want to involve themselves into legislative affairs and send shock
waves throughout our culture without the public having a right to say
something, without the public having a right to put their stamp of
approval on what is moral and just.
Some have said that the States can handle this. Some have said this
is a federalist issue; We should not have Federal legislation on this;
This is usurping States rights.
I don't know what involves the States more than having every State
legislature in the country debate this issue. That is not usurping
States rights; that is placing in the hands of the States the decision
as to whether to move forward. Thirty-eight of the fifty States have to
affirm this constitutional amendment. This is not an easy thing to do.
That is why we don't have very many amendments to the Constitution. But
it is a purely democratic process, just like the debate in the Senate.
I think we should give the States, the people, the right to make this
decision before a group of unelected judges, following the lead of the
U.S. Supreme Court, do it for us.
First and foremost, this constitutional amendment is about democracy.
It is about the people expressing their will on potentially the
greatest moral issue of our time, and that is the integrity of the
traditional family. That is issue No. 1.
Issue No. 2 is an important one, also. I heard the Senator from
Kansas talk about this eloquently, so I won't spend a lot of time. He
did as good a job as any on the issue. That is the impact of the
deconstruction of marriage on society. I heard the Senator from Kansas
say that marriage is already in trouble in America. There is certainly
little to argue that that is not true. It is true, marriage is in
trouble. But I agree with him by saying just because something is in
trouble doesn't mean you need to get rid of it altogether. Without
question, once you change marriage from an institution whose societal
purpose is focused on having children, being an institution that is the
best place to rear future generations of society, once you change
marriage from being principally about children, although not
exclusively, certainly, but principally about children, to exclusively
about adults, then you change marriage forever.
We did that in part 30-plus years ago with no-fault divorce laws.
When they came into place, they said children will be helped by this.
There will be fewer unhappy homes. I don't think there is a whole lot
of evidence out there that would suggest children have been helped by
the rapid increase in divorce. I know the Senator from Kansas had some
charts up of how children in two-parent families don't end up in
poverty as much, do better in school. I don't know of a social
indicator out there that doesn't suggest that being in a married home
is not more beneficial for children. That is certainly not to say that
children raised in single-parent homes can't and don't do well. Most
do. But the point is, society should be advocating for what is best for
children and should set a standard for what is best.
We know what is best. We know it intrinsically, but we have
supporting evidence as to what is best for children--less substance
abuse, less abuse or neglect, less criminal activity, less early sexual
activity, fewer out-of-wedlock births, fewer behavioral problems. It
goes on and on. We know marriage is inherently good for children.
We also know that when we destroy marriage, when we deconstruct
marriage, bad things happen. We saw that with no-fault divorce. More
people got divorced. We changed the definition of marriage, and we say
marriage is no longer about children, no longer about the next
generation. Marriage is simply the affirmation of affection of two
adults. Or, as Justices Scalia and White suggested, why limit it there.
Why not, as we see in cases now being filed all over the country, why
not three adults, four adults, five adults? What is the difference from
the standpoint of a rationale? If marriage is not about one man and one
woman for the purpose of a relationship of which to have children and
continue society, if it is about two women and two men or two women and
three men, why not whatever arrangement? If gender does not matter
anymore, why does number matter? What is the significance? What is the
logical argument to draw the line here? As Justice White said, it would
be by fiat to draw the line.
So we have a situation where without question, marriage would be
undermined by this deconstruction. In fact, we see it. I have an
article by Stanley Kurtz on what is going on in Europe, in countries
that have, in fact, changed the definition of marriage. Those countries
are now seeing dramatic declines in the number of marriages, not
increases in the numbers of same-sex marriages but declines in the
number of heterosexual marriages and dramatic and steady increases in
the number of children being born out of wedlock.
I ask unanimous consent for 2 additional minutes.
The PRESIDING OFFICER (Mr. Burr). Without objection, it is so
ordered.
Mr. SANTORUM. Mr. President, the final point I want to make--and I
will try to come back to the floor when I have more time--is regarding
the impact of this movement in the country by the courts on religious
freedom. There was an article written, which was on the front cover of
the Weekly Standard, called ``Banned in Boston,'' where Maggie
Gallagher talks about Catholic Charities in Boston having to get out of
the adoption business because they will not consent, under their
Catholic orthodox faith, to place children into same-sex couple homes.
It is against the Catholic faith to do so. There is a very clear
message from Rome that this is not proper behavior. They were refused
their license, and now one of the longest standing adoption agencies in
Massachusetts no longer places children for adoption. Why? Because all
around faith, all around churches and parachurch organizations, and
missionary organizations is, whether we like it or not, the Government.
When the Government comes down with things that are contrary to that
faith group there will be friction.
In fact, Mark Stern, who is a lawyer for the American Jewish
Committee, is quoted as saying:

It is going to be a train wreck, a very dangerous train
wreck.

So not only will this new right that the court has established in the
follow-on--the right of same-sex marriage--going to cause problems with
democracy and problems with marriage, it is going to create huge
problems for our faith-based organizations. It is something that we
need to address. Thank you.
Mr. REID. 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. SANTORUM. 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. REID. 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. REID. Mr. President, I just returned from my State of Nevada. For
example, I did an event that received a lot of attention dealing with
gas prices. Gas prices are so significant. Nevada has the third highest
gas prices in all the country. Unfortunately, we have been in second
place on occasion. It is not unusual to drive by a service station in
Nevada and see the three different prices and the bottom one is $3.40.
The average price last week was $3.19 a gallon.

[[Page 10031]]

What are we doing on the Senate floor today? No matter how a person
feels about the marriage amendment, everyone knows it is not going to
pass. It is not going to come close to passing. We voted on this a
short time ago and got 48 votes. It takes 67 votes for a constitutional
amendment to begin the process. This is not what the American people
want to talk about. All you have to do is listen to the conservative
talk shows, the liberal talk shows, read the newspapers, the liberal
columnists, the conservative columnists. With rare exception, they say
we are wasting the taxpayers' time doing this.
We have a war in Iraq going on. Are we having a discussion on the war
in Iraq, where yesterday 80 Iraqis were killed, 7 having their heads
cut off and put in a marketplace in baskets? Are we talking about that?
We have soldiers valiantly fighting every day over there, Mr.
President. We have been struggling to get a supplemental appropriations
bill completed. They need our help.
In Nevada, like every other State in the Union, we have hundreds of
thousands of people who have no health insurance. The State of Nevada
leads the country in uninsured. The prescription drug bill was passed
dealing with Medicare. It has been a nightmare for seniors and a gift
for HMOs, pharmaceuticals, and insurance companies. When I was in
college, I studied, among other things, political science. I don't know
why, but it stuck in my mind.
A professor named Harmon Judd said: Let me explain this Federal
system. What it means is, you have a central whole divided among self-
governing parts. That was his definition. What are those self-governing
parts? The 50 States; originally Thirteen Colonies, now 50 States. They
are doing a pretty good job. Almost 50 States have either passed laws
or constitutional amendments dealing with marriage. Over the top of
that, we have the Defense of Marriage Act, which has been attacked
numerous times by people trying to knock it out. It has been upheld by
Federal courts three times, which basically says--not basically--it
says a State does not have to give full faith and credit to another
State's marriage laws. It is up to the State to determine what the
marriage law is. That is what federalism is all about, as set forth,
among other places, in the Defense of Marriage Act.
We really need to focus on stem cell research. There are hundreds of
thousands of people crying for our help. They believe, as does the
scientific community, that dread diseases can be moderated and cured--
things such as Parkinson's disease, Alzheimer's, Lou Gehrig's, and
diabetes. But we are not talking about that today.
Price gouging: Senator Cantwell had 57 or 58 votes a short time ago
on a price-gouging amendment. We could not break the logjam we had. We
could not get enough support from the majority.
I ask unanimous consent that the Commerce Committee be discharged
from further consideration of S. 1735, the Energy Emergency Consumer
Protection Act, and that the Senate proceed to its immediate
consideration.
Before there is a response as to whether this would be granted, I
suggest to those within the sound of my voice that this is a price-
gouging amendment. I was told it was 57 votes in the Senate. I ask
unanimous consent that request be granted.
The PRESIDING OFFICER. Is there objection?
Mr. BROWNBACK. Reserving the right to object, and I will object, this
issue is going to come up in front of the body on the overall energy
situation. The Republican leadership is working on that, as well as on
a stem cell compromise, as well as on the supplemental bill, which will
be considered and brought forth in due order. This is not agreed to by
the Republican leadership to come up; therefore, I do object.
Mr. REID. Reclaiming my time, in due consideration, Mr. President,
everything around here with the majority is due consideration. We are
going to do an energy bill after we finish gay marriage, estate tax,
flag burning--things that are important to people but are way down the
list of priorities of the people at home in Nevada. How about an energy
bill or stem cells? We have been waiting more than a year to do
something on stem cells--more than a year.
The PRESIDING OFFICER. Objection is heard.
Mr. DURBIN. Through the Chair, I ask if the Senator from Nevada is
aware that the Gallup organization, which does polling across America,
did a poll of 1,000 Americans in April which asked them the following
question: What do you think is the most important problem facing
America today?
I would like to ask the Senator from Nevada if he knows where the
issue of gay marriage came in on this poll of Americans about the most
important issues facing America today?
Mr. REID. I really don't know.
Mr. DURBIN. I will alert the Senator from Nevada that it tied for
33rd in the list of priorities for America today.
I ask the Senator from Nevada, since the Republican majority controls
the Senate, they set the agenda for things that we debate and vote on;
do they not?
Mr. REID. That is right.
Mr. DURBIN. Am I correct that Senator Frist and the Republican
majority have decided that instead of the war in Iraq where we continue
to lose servicemen, instead of the energy crisis which forced the price
of gasoline to record-high levels causing hardship to families and
individuals resulting in laying off workers across America, instead of
dealing with health care where over 46 million Americans have no health
insurance whatsoever and many have health insurance that is totally
inadequate, instead of dealing with the cost of higher education where
working families are struggling to get their kids through school and
children who are accepted at the best schools and universities face a
mountain of debt, instead of dealing with those issues which rank in
the top 10, is it true that the Republican majority has decided we need
to focus this entire week in the Senate on No. 33, issues involving gay
marriage?
Mr. REID. I respond to my friend that I am stunned. I am stunned that
it has taken weeks, weeks, weeks, and weeks to even be able to deal
with money for our troops, the supplemental appropriations bill. I am
in a quandary. I am so grateful that I represent the people of Nevada
in the Senate. But I want to do things that I can talk to the folks at
home about that have relevance to their everyday lives, such as gas
prices, sending their kids to school. Many academically talented
children are not able to go to school because their parents are not
rich.
Mr. DURBIN. If the Senator will yield for an additional question,
they say debate on the floor of the Senate is about the ``M'' word,
about marriage. It strikes me that it is not about the preservation of
marriage, it is about the preservation of the ``majority,'' the
Republican majority. That is the ``M'' word behind this debate.
I ask the Senator from Nevada, if this issue is not creating a
national problem or crisis, if it ranks so low among the American
people, 33rd on the list of the important things facing America, why, I
ask the Senator from Nevada, has the Republican majority ignored all
the issues that people care about and count on us to do something
about? Why are they ignoring all these issues and moving to this issue
of gay marriage and proposing a constitutional amendment?
Mr. REID. Mr. President, the chairman of the Judiciary Committee on
the floor yesterday said this issue dealing with marriage is a solution
in search of a problem. It is being done, I believe, to divert,
distort, and confuse Americans as to what the real problems are. Do
anything possible, but don't talk about gas prices because if we talk
about gas prices, we would have to bring out on the floor that the most
oil-friendly Presidency in the history of this country is now at 1600
Pennsylvania Avenue. The President made his fortune in oil. Vice
President Cheney is still making his fortune in oil. He made it with
Halliburton. Secretary of State Condoleezza Rice was on the board of
directors of Chevron. They liked her so much they named a tanker after
her.

[[Page 10032]]

The Secretary of Commerce made his fortune in oil. We could go on and
on.
If we talk about the issues affecting the American people, then maybe
what we would do is Senator Maria Cantwell's price-gouging bill. Exxon
made $34 billion in net profit last year, which is the most money a
corporation has ever made in the history of America. So, no, the
majority doesn't want to talk about these issues, about the tax credit
for sending kids to college.
Mr. DURBIN. If the Senator from Nevada will further yield for a
question, I ask the Senator, is it not true that the resolution before
us would require 67 votes in order to be approved by the Senate?
Mr. REID. That is true.
Mr. DURBIN. And the last time we considered this measure, some 48
Senators voted for it? It fell far short of what it needed.
Mr. REID. Nineteen short.
Mr. DURBIN. So I ask the Senator from Nevada, does he reasonably
believe now there are 67 votes or near 67 votes for this resolution?
Mr. REID. Mr. President, the distinguished Senator from Illinois
knows, as I know, that there isn't a person in the Senate who thinks
this has any chance of passing--no chance of passing. It will get 48,
50, 51 votes. I don't know how many votes it will get. If it were a
straight up-or-down vote on an amendment, it would get less than that
because some Republicans have said: This is a procedural vote, I am
going to vote to allow it to go forward, but if it were here, I
probably wouldn't vote for it. So you probably have in the Senate 41 or
42 sound votes for this.
Mr. DURBIN. If I can ask the Senator from Nevada, how much time do we
have? If we take a week and spend it on a gay marriage amendment, and
then a week and spend it on a flag amendment, and then another week and
spend it on, let's say, repealing the estate tax on the wealthiest
people in America, don't we have a lot of time left before the election
to consider issues such as the war in Iraq, energy costs, health
insurance for all American families, the cost of education, and the
appropriations bills? How much time do we have if we take 3 weeks?
Mr. REID. Approximately 45 legislative days, that is all.
Mr. DURBIN. Before the election.
Mr. REID. That is right.
Mr. DURBIN. I ask the Senator from Nevada, he says we have 45 days,
and we are going to spend 3 or 4 days this week on an amendment that
doesn't have any chance, that ranks 33rd in a Gallup poll when it comes
to the interests of the American people--I return to the same basic
question: Why? Why are we doing this? Why aren't we focusing on issues
that count if we have so little time?
Mr. REID. One of the Democratic Senators spoke with the majority
leader. The majority leader said these things need to come up every
year or two. That is the reason.
Mr. DURBIN. I ask the Senator from Nevada, it is a shame--I ask him,
does he think that perhaps if this should come up every year, even
though it doesn't have a chance of passing, whether or not we should
consider bringing up every year an effort to make health care more
affordable for the American people, whether we ought to consider every
year dealing with the war in Iraq that continues to claim American
lives, whether we ought to be passing new ethics laws to reform the
lobbying system in Washington? I ask the Senator from Nevada, if we are
going to have an annual occurrence, if these are, in fact, perennial
issues, aren't there some that should be as a matter of course called
before the Senate?
Mr. REID. Maybe--I think it has been about a year; I have lost track
of the time--maybe what we are going to be coming up with after these,
maybe we will have the Schiavo matter come up again. What does the
Senator think of that?
Mr. DURBIN. I say to the Senator from Nevada, asking this question,
isn't it true the last time the Republican leadership got in trouble in
the House, when the majority leader, Tom DeLay, was in his difficulty,
that someone brought up the issue of intervening in the tragedy of
Terry Schiavo in Florida, injecting the Federal courts into the
hospital room when this poor family had spent 15 years, when this young
woman was on life support, that all the courts having decided that the
family could make the decision, the most intimate personal decision,
the Republican leaders in the House and Senate said: No, we are going
to have the Federal court step in and make the decision, take the power
away from the doctor and the families?
Isn't it interesting, I ask the Senator from Nevada, that when they
were facing all this grief over Tom DeLay and ethical questions, they
raised the Terry Schiavo issue, and now we find them raising the gay
marriage issue because the polls are so low and the election draws
near?
Mr. REID. We know, I say to my friend, what can be done in this body
if we get a nudge from the President, a little bipartisanship. Look
what we did, I say to my friend. We spent several weeks on the Senate
floor on a bipartisan basis passing a comprehensive immigration reform
bill. Why were we able to do that? Because the President decided to get
involved in it. He decided it was time to do comprehensive immigration
reform, and I complimented him on that.
Isn't that the way we should be legislating around here, I say to my
friend, the distinguished Senator from Illinois? Shouldn't we be
working in conjunction with the White House on these issues, bills that
we can pass, something that has some meaning, having the President lead
a charge on health care reform, not little specks of things here? How
about doing something here to lessen our dependence on foreign oil. We
use in America 21 million barrels of oil a day--21 million barrels of
oil every day, every day, 66 percent of it is from foreign sources. We
have less than 3 percent, counting what is in Alaska, for the United
States. We can't drill our way out of our problems. I say to my friend
from Illinois, maybe that is what it is all about.
Mr. DURBIN. If I might ask through the Chair the Senator from Nevada,
the Democratic leader, did we not attend the State of the Union Address
just a few months ago when the President said America was addicted to
oil? It was the lead in all the stories the next day: America is
addicted to oil. Then we saw the gasoline prices skyrocket causing all
these hardships.
I ask the Senator from Nevada: Have we received a proposal from this
White House, from this administration since that famous State of the
Union Address suggesting how we can change America's energy policies to
make us less dependent on foreign oil, to protect American consumers
and businesses, to punish profiteering, to promote the kind of energy
innovation which will lead to conservation, efficiency, less pollution,
and less dependence on foreign oil? Have we heard that kind of
leadership from the White House to contrast with what the President
called for that we spend this week on a constitutional amendment which
has no chance of passing?
Mr. REID. It is a matter of priorities, I say to my friend, a matter
of priorities, what is important to this administration. Obviously, it
is not gas prices. Obviously, it is not college tax deduction.
Obviously, it is not this debt.
I say to my friend, even in our conversation this morning, we haven't
talked about the stagnant debt. And remember, in the last 3 years of
the Clinton administration, the national debt was paid down by half a
trillion dollars approximately. What do we have here? Red ink as far as
you can see. Have we heard anything from the President to lower this
debt?
Mr. DURBIN. I ask the Senator from Nevada the following question: Is
it not true that 5 years ago--6 years now, almost 6 years now when
President Bush came to office--that as the Clinton administration left,
we had a surplus in the Federal Treasury, that we were taking the
surplus revenue collected in America, paying down the long-term debt of
Social Security so that it would be strong for years to come? Is it not
also true that when President Clinton left office, the entire national
debt accumulated over the history of the

[[Page 10033]]

United States was about $5.7 trillion or $5.8 trillion, and that today
the national debt is bumping up against $9 trillion, and in the 6 years
since President Bush has been in office, there has been a dramatic
increase in this national debt?
Is it not also true that this President, despite a war which saps
away $2 billion or more every week, he has called for tax cuts on the
wealthiest people in America and continues to call for those tax cuts,
despite this deficit? And I ask the Senator from Nevada, is that what
fiscal conservatism is all about?
Mr. REID. My only correction of the distinguished Senator is it is
$2.5 billion a week the war is costing us, about $10 billion a month. I
mentioned, I say to my friend, the definition I got in college about a
central hole divided into self-governing parts of the States. I always
thought the Republican majority, as it is now, believed in States
rights. That is what federalism is all about.
Where in this debate, that shouldn't be taking place on the floor
right now, is there any inkling of States rights? None. Forty-five
States have already, through statute or constitutional amendment, as in
Nevada--Nevada amended its constitution on this issue. But where are my
friends, my Republican friends? Where are they on this issue of States
rights? This isn't the first time we have brought up issues that have
been defeated, defeated, defeated.
Medical malpractice is something the State of Nevada took on on its
own, set their own rules. The Governor called a special session of the
legislature. We now have rules in the State of Nevada dealing with
medical malpractice.
That is not good enough for this Republican majority. We have voted,
I believe, three times on a national law dealing with medical
malpractice--take the States out of the picture.
So I ask my friend, he being involved in Government in one way or
another most of his adult life, does he remember the Republicans at one
time standing for States rights?
Mr. DURBIN. In query of the Senator from Nevada, I ask him, I thought
I understood the basic difference between Democrats and Republicans,
that the so-called Republican conservative philosophy was for fiscal
conservatism, avoiding debt. Now we have the largest debt in the
history of the United States and getting worse without any effort by
the Republicans to deal with it.
Traditionally, the Republicans argue the Government is best that
governs least and gives power to the local units of government closest
to the people. Now we have with this amendment an attempt to amend the
Constitution and to preempt the power of the States to establish
standards for marriage.
I ask the Senator from Nevada: Did we not honor States rights with
the passage of the Defense of Marriage Act which said that no State
shall be compelled to recognize gay marriage if any State should enact
such a law, as Massachusetts has?
I ask the Senator from Nevada: Isn't the Defense of Marriage Act
consistent with States rights, and isn't the proposed constitutional
amendment an assault on the rights of States to establish the standards
for marriage which they have throughout our history?
Mr. REID. And I remind my friend, the Defense of Marriage Act passed
when we had a Democratic President and a Democratic majority in the
House and the Senate. I am quite sure that is right, at least in the
Senate; I don't know about the House. We passed it because it was the
right thing to do--States rights.
The other point I suggest is that it is a wrong-placed priority doing
this resolution and nothing with homeland security. Just last week, the
Secretary of Homeland Security decided that New York, for example,
would lose $200 million. States all around the country will have less
money to protect themselves. I would think that is worth a debate on
the Senate floor. Does the Senator from Illinois agree with that--
homeland security?
Mr. DURBIN. I respond to the Senator from Nevada and ask a question.
I ask the Senator: If someone were to step back at this moment and say
the Senate is debating a constitutional amendment, which everyone
concedes will not pass, we are going to spend the whole week on it, and
this issue ranks 33rd on the list of priorities of the American people,
the States are already dealing with it directly, they have spoken to
this through a variety of constitutional amendments and referenda in
each and every State, virtually every State, I ask the Senator from
Nevada, does that lead to the conclusion the cynicism the American
people feel toward Congress and the leadership, the Republican
leadership, in this Senate has been verified by the agenda we are
dealing with this week?
Mr. REID. Our time has expired, and I say yes.
Mr. DURBIN. I yield the floor.
Mr. WARNER. Mr. President, I wonder if I might ask if we could extend
the time over here for a few minutes, maybe 5 minutes, to make a brief
statement on this issue.
Mr. REID. The recess would be delayed for 5 minutes? Is that the
request?
Mr. WARNER. Yes.
Mr. REID. No objection.
The PRESIDING OFFICER. Without objection, it is so ordered.
Mr. WARNER. I thank the distinguished leader.
The PRESIDING OFFICER. The Senator from Virginia is recognized.
Mr. WARNER. Mr. President, I rise today with respect to S.J. Res. 1.
When considering proposed amendments to the United States
Constitution, I first look back to history. In the summer of 1787, 55
individuals gathered in Philadelphia to write our Constitution. It was
a very hot summer, and it was a long and arduous debate, many drafts
back and forth, but careful consideration was given. Finally, in mid
September, it was over. The Constitution they produced was a monumental
achievement. But the Framers did not know at that time what a great
achievement they had made, one that would enable the United States,
today, these 200-plus years later, to become the oldest continuously
surviving Republic form of government on Earth today.
Article V of the U.S. Constitution lays out the process for amending
this magnificent document. In their wisdom, our Founding Fathers
purposefully made the task immensely formidable. Of both Houses of
Congress, two-thirds have to vote in favor of passing a proposed
amendment. Subsequently, three-fourths of the states have to ratify
that amendment over a period of time.
History documents that there have been many attempts to amend the
U.S. Constitution. According to one study--since 1789, over 10,000
amendments to the Constitution have been proposed in Congress, but only
27 have ever been ratified.
With this historical framework in mind, I have reviewed S.J. Res 1--
the Marriage Protection Amendment.
Mr. President, I ask unanimous consent that a document referred to as
the ``box chart'' be printed in the Record following my statement.
The PRESIDING OFFICER. Without objection, it is so ordered.
(See exhibit 1.)
Mr. WARNER. The proposed constitutional amendment is simply two
sentences. The first sentence reads that marriage in the United States
shall only consist of the union of a man and a woman. This is a concept
which I have consistently voted in support of--beginning with the
Defense of Marriage Act in 1996, and basically on this same
constitutional amendment 2 years ago. The time-honored, deeply rooted
tradition of marriage between a man and a woman ought to be protected,
and I support that.
But the second sentence of the proposed amendment gives me great
concern. It states that 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. It gives me concern because I don't think the second
sentence speaks with the clarity to which the American people are
entitled. Any number of calls are coming into my office, as they are to
other Members, and clearly the

[[Page 10034]]

callers are focusing on the first sentence. When you try to explain the
second sentence, they don't understand it.
My colleagues who are supportive of this proposed constitutional
amendment have stated that it is their intent that this second sentence
will leave to the several States the decision of whether to recognize
relationships other than marriage, such as civil unions or domestic
partnerships. But if that is the case, why not simply state that in
plain English that is understandable for the millions upon millions of
Americans who are interested in this amendment? It is amazing to me
that a little more than 2 weeks ago, this Senate overwhelmingly
approved an amendment to make English the national language of the
United States. Yet today we debate an amendment to the U.S.
Constitution--one of the most grave responsibilities incumbent upon
Members of Congress--America's founding document--and the second
sentence of that proposed amendment fails in many ways to speak with
the clarity of the English language to which our public is entitled.
Some who have spoken in support of this proposed amendment have
employed a box chart on the floor of the Senate, and I have asked
unanimous consent to include that in the Record in an effort to
demonstrate that the resolution would protect marriage but permit
States to recognize relationships other than marriage. If this is the
case, why not simply say so? Why not simply say that the power to
recognize or to prohibit relationships other than marriage shall be
reserved to the several States? Or why not simply drop the second
sentence altogether if it is confusing? Either option would clearly
allow the 50 States to work their will on the issues of civil unions or
domestic partnerships. I believe it is extremely important that we
leave to the States that responsibility.
If we wrote the second sentence plainly, we wouldn't need a box chart
to sit here on the floor and try to decipher it.
My own State, the Commonwealth of Virginia, is trying to work its own
will on these issues right now. With the lack of clarity in this
proposed federal amendment, I have to wonder whether the proposed
federal amendment respects the right of the several States to act in
this area.
As the second sentence of this proposed amendment is written now, the
intent of the amendment simply isn't clear. What if a State legislature
wanted to pass a State constitutional amendment to allow domestic
partnerships? As I read this proposed amendment, it would likely
preclude a State legislature from so acting. This type of unnecessary
confusion will undoubtedly lead to considerable litigation if this
proposed amendment is accepted in its current form.
That, it seems to me, is not the duty of the Congress of the United
States, to write something that just calls upon the courts to try to
determine what was the intent of the Congress. Then we have to go to
the box charts. Well, to me, the box charts speak in plain English
language, and that is why I am hopeful that the framers of this
amendment will perhaps consider amending it.
Therein rests the concern I have with S.J. Res. 1. I unequivocally
support the first sentence; I support protecting marriage as the union
between a man and a woman. I am concerned, however, that the second
sentence of this proposed constitutional amendment is unnecessarily
vague and could well trample on the rights of the several States of our
great Republic.
I yield the floor.

Exhibit 1

Marriage Protection Amendment

S.J. RES. 1

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.

----------------------------------------------------------------------------------------------------------------
Creation of
Redefinition of ``Civil Unions'' Granting the Employee Benefits
Marriage or ``Domestic Rights or Benefits Offered by Private
Partnerships'' of Marriage Businesses
----------------------------------------------------------------------------------------------------------------
State or federal courts can Sentence 1 Sentence 2 Sentence 2 Unaffected.
impose? prohibits. prohibits. prohibits.
Legislature can make change? Sentence 1 Decision of State Decision of Unaffected.
prohibits. Legislature. Legislature.
----------------------------------------------------------------------------------------------------------------

____________________