Statement of Senator John Cornyn
DECISION OF THE MASSACHUSETTS SUPREME COURT
U.S. Senate - February 6, 2004
Mr. CORNYN. Mr. President, 2 days ago, the Massachusetts Supreme Court sent shock waves across America when it held
that traditional marriage -- a marriage between a man and a woman -- would be eliminated by judicial fiat. It is no secret the American people support
traditional marriage. Yet some who would criticize that support for traditional marriage accuse those who support it of being intolerant.
What I would suggest to you is the only ones guilty of intolerance are those who support the kind of judicial activism we have seen demonstrated by the
Massachusetts court most recently -- one that is fundamentally disdainful of democracy itself under the rule of law.
Most Americans instinctively and laudably support two fundamental propositions. First, that every individual is worthy of respect, dignity; and second,
that the traditional institution of marriage is worthy of protection.
Some opponents of traditional marriage laws, however, have accused those who disagree with them of intolerance, even though support for traditional
marriage reflects traditional values shared by the overwhelming number of Americans. These deeply held values deserve more respect than that.
Throughout history, mankind itself, humankind itself, has recognized the fundamental importance of marriage and its traditional definition as the union
of one man and one woman. That understanding is reflected in the laws, traditions, and customs of all 50 States. Now I should say, apparently, 49
States -- unless the Massachusetts Legislature and the Massachusetts people are able to somehow overcome this edict by the Massachusetts Supreme Court
in their attempt to alter this historic institution and fundamental building block of our society.
Common sense and social science alike teach us that, even as we respect family relationships of all kinds, we must recognize that children are best
raised by intact traditional families.
Accordingly, in 1996, this body, the U.S. Congress, recognized that fact by passing a law called the Defense of Marriage Act, a law that was supported
by overwhelming bipartisan majorities in both the Senate and in the House, and ultimately signed into law by President Clinton, a law that reaffirms
that marriage is defined as the traditional union of a man and a woman. Indeed, three-fourths of the States have approved similar legislation. In
light of this popular and well-grounded national consensus, charging supporters of traditional marriage with intolerance is simply outrageous.
I agree with the Senator from Massachusetts, Senator Kennedy, who said in 1996 as part of the debate over the Defense of Marriage Act that "there are
strongly held religious, ethical, moral beliefs that are different from mine with regard to the issue of same-sex marriage which I respect and which
are no indications of intolerance."
It was just last September that the Constitution Subcommittee of the Senate Judiciary Committee, which I chair, held a hearing to consider whether some
recent U.S. Supreme Court decisions put the Defense of Marriage Act in jeopardy. To me it just made good sense that Congress itself, after having
passed this law so overwhelmingly, would look to see whether judicial activism posed a threat to this democratic _expression of the will of the American
people through their duly elected representatives.
Indeed, there was some debate whether the Supreme Court decision in Lawrence v. Texas, which created not just an equal protection right but which
created out of whole cloth this notion espoused by Justice Kennedy and a majority of the Court, to an individual right to autonomy in one's sexual
relationships, such that government can never regulate or intrude.
Of course, they purported to put marriage, incest, pedophilia, and other things like that out of bounds or outside of their decision, but the
fundamental basis for that decision, legal scholars at that time recognized, could easily be transferred to other cases where the very definition of
marriage and family itself was at issue.
So it was with great concern that, just a short time after that September hearing, we saw the day when we would have to face this issue had come much
faster than any of us could imagine. The Massachusetts Supreme Court, the first court in the Nation, held that -- based on the very same rationale that
the U.S. Supreme Court used in the case of Lawrence v. Texas -- that Massachusetts could no longer limit marriage licenses to couples of the opposite
sex.
In an apparent attempt to create a figleaf of an idea that democracy was still alive in Massachusetts and it would not forever be ruled by judicial
edict, the Court granted the legislature 180 days to bring the laws of Massachusetts into line with this new found legal right to same-sex marriage.
It was a newly discovered right, of course, being found primarily in the U.S. Supreme Court decisions of last summer.
So in an effort to find some way out of this dilemma, the legislature asked the Massachusetts Supreme Court whether civil unions would be sufficient
under the court's ruling to meet the requirement of equality of treatment. It was the day before yesterday when the court, astoundingly, said "No."
The only thing that would satisfy the Court's decision, its edict, would be to give same-sex couples the same treatment as we recognize for traditional
marriage between a man and a woman. Thus the people of Massachusetts, their Governor, their legislature, are now scrambling to try to figure out what
alternatives are available to them. They hope to avoid this runaway train careening down this track -- the establishment, at least in Massachusetts,
of a right to same-sex marriage.
The thing that was impressed upon me so much about the Massachusetts decision when reading it, besides the fundamental holding which sent shockwaves
across America, was the sheer contempt that the court held for traditional marriage. Its intolerance for traditions we have recognized in this country,
certainly since its founding, and in identifying this new right based on no particular or specific text but indeed made up out of whole cloth by the
court relying on Lawrence v. Texas.
The Massachusetts court did not stop at this enormous step, but proceeded to condemn traditional marriage outright, and they did so in rather startling
terms. After acknowledging, as Senator Kennedy had back in 1996 when we were talking about the Defense of Marriage Act, that deep-seated religious,
moral, and ethical convictions are motivating traditional marriage supporters, the Massachusetts court said that it still found "no rational reason" for
laws limiting marriage to a man and a woman. And, in fact, it went even further. It concludes the traditional marriage is "rooted in persistent
prejudices."
I know that Members of this body and our colleagues across the Capitol, really no one in America, wants to engage in this debate. It is understandable.
No one, frankly, wants to be painted with a brush of intolerance of somehow treating people badly. But as I said, this is not about treating others
badly, failing to give them respect as individuals. This is about the intolerance marshaled by judicial activists on the Massachusetts Supreme Court
and on benches around the country, the massive intolerance they have for fundamental democratic values. These are the values that say we, the people,
are the judges of our own destiny, and no law will be made unless it is founded on the fundamental consent of the people, not on casual judicial
edict.
The American people are left in shock when, occasionally, courts come out with rulings that defy all logic and all common sense -- rulings that
dramatically conflict with our traditions and our fundamental values.
These are cases not only like the Massachusetts case, but like the case decided by the Ninth Circuit not too many months ago where, for the first time
in American history, a court has held that to allow schoolchildren to say the Pledge of Allegiance and recite "one nation under God" violated the
Constitution. Again, another decision totally at odds with common sense, totally at odds with our values and traditions, and one that certainly the
American people would not support. Instead, a handful of judges who appear to consider themselves smarter, wiser than the common man, are telling
the American people what they think is good for them.
After all appeals are exhausted, if in fact the American people are left with a decision like this Massachusetts decision, make no doubt about it, if
it stands, it will then be used in a variety of different ways.
Lawsuits will proliferate all across the country, citing the Massachusetts decision, based on this U.S. Supreme Court decision Lawrence v. Texas
last summer as a basis to recognize same-sex marriages in other States. Because they will be challenging on a constitutional basis, State statutes will
then be scrutinized to see if they pass muster under this new-found constitutional right made up by the Massachusetts court. They will be argued as a
basis upon which to overturn traditional marriage laws in other States as well. And that will happen in State and Federal courts, all across the
country.
The second thing that will happen is that same-sex couples who receive marriage licenses in Massachusetts will begin to move to other States, and they
will file lawsuits in those States and say: Under the full faith and credit clause of the U.S. Constitution, I have a right, under the U.S.
Constitution, to have my marriage, which is valid in Massachusetts, recognized in Texas or Kansas or Maine or California, Oklahoma, Florida -- you
name it.
We will begin to see these sorts of lawsuits and claims proliferate around the country. And that causes me a great deal of concern when a court of law,
supposedly -- but really a court that is acting more like a superlegislature, a legislature wearing black robes, ruling by edict and the gavel -- makes
statements such as this, such as the court in Massachusetts did when it called traditional marriage a "stain," a "stain" on our laws that must be
"eradicate[d]."
I am just baffled at how people, who put their hands on the Bible and pledge to uphold the laws and the Constitution of their State and of the United
States, can find a right that no one else has found to exist in the Constitution. I am baffled that they are so openly contemptuous of American values
and American families and our traditions that they would call traditional marriage a "stain" that must be "eradicate[d]" from our laws.
The choice is up to us, whether to live with the dictates or the edicts of judges. Judges in other States cannot be held directly accountable to us,
because we cannot vote on them, we cannot seek any sort of redress against those decisions. Yet we have to live with this sort of judicial adventurism
and judicial activism that challenges the basic precepts upon which our society is based.
The choice we are left with is to decide whether a Federal marriage amendment to the U.S. Constitution is the appropriate response.
As I said just a few moments ago, last September I held a hearing in the Constitution Subcommittee of the Judiciary Committee, asking the question: Is
the Defense of Marriage Act in jeopardy? As I said, we had a debate. Some said, well, yes, they thought courts had all the tools they needed in order
to hold that act unconstitutional, and it was just a matter of time before they did that. And there were others who candidly said: No, there is no way,
no how, that it was never going to happen.
Well, we have learned something since that September hearing. Not only has a court shown its willingness to attack the fundamental institution of
traditional marriage in such a contemptuous, anti-democratic way, but the day on which other courts are more likely to do the same has become incredibly
accelerated.
I believe we are now engaged in a battle over whether this land, when it comes to traditional marriage, will be ruled by the whim of judges or whether we,
the people, will determine our fate and our values and the outcome of this very important controversy.
I believe we stand by and do nothing at our own peril, because if we do nothing, this decision will redefine and trivialize the institution of marriage.
If you can take the label of "marriage" and apply it not just to the traditional relationship between a man and a woman -- one that has been found over
countless years to benefit children, to provide a stable emotional and economic foundation for children so they can then prosper and become responsible,
productive adults -- if we allow a court, making it up as they go along from the sweet mysteries of life, to attack an institution as fundamental as
marriage -- and our response is to do nothing about it, then shame on us -- shame on us.
I never imagined in a million years when I ran for this body, the United States Senate, in 2002, that I would be coming to the Senate floor and defending
traditional marriage. And I bet my colleagues here, on both sides of the aisle, in both Chambers, are scratching their heads and wondering: What has the
world become? Has the world gone crazy? What happened to our understanding of what American values are, and our tradition, and our respect for
democracy, and our respect for the different branches of Government that perform different functions, with the Legislature passing laws, the courts
interpreting the laws, and the President, the executive branch, executing those laws?
We stand by and do nothing at our own peril. So I believe the time has come for the appropriate committees in this body, as well as in the House of
Representatives across the Rotunda, to convene hearings to determine how best we can respond to this startling display of judicial activism that so
threatens our fundamental institutions and our values. As the chairman of the Constitution Subcommittee of the Judiciary Committee, I intend to work
with Chairman Hatch to do just that.
The day that some speculated would come has now come upon us so much more quickly than any of us ever dreamed -- the day has come, I believe, to confront
this challenge to democracy and to the rule of law itself face to face.
We must not flinch. We must not back down. We must not allow people to paint our motivations as hateful or hurtful because, indeed, they are not.
No, what we are about is preserving our law, preserving the separation of powers where the legislature makes the law and the judiciary interprets the law.
We are about preserving the fundamental building block of our society and the well-being of families and the welfare of children. That is what we are for.
That is what this debate will be focused on.
I believe the institution of marriage deserves better than it has received at the hands of the Massachusetts Supreme Court. Our institutions of democracy
deserve better. The American people deserve better. They deserve respect. Our Constitution deserves respect.
Traditional marriage laws have served as the underpinning of civilized society for countless generations. Opponents of traditional marriage should
demonstrate greater tolerance and respect toward others by respecting democracy and the will of the people, and ceasing their judicial war against
marriage.
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