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SUMMARY OF U.S. SENATE DEBATE CONCERNING PROPOSED FEDERAL MARRIAGE AMENDMENT

July 12, 2004

Proponents had ample time Monday to make the case for a Federal Marriage Amendment, and some expressed disappointment that opponents did not engage them in the debate. Debate over the proposed Federal Marriage Amendment began in earnest on Monday. A parade of Republican proponents spoke up on behalf of the benefits of marriage, fathers, and mothers, but few Democrats enjoined the debate.

Senator Dianne Feinstein (D-CA) was the only member to speak substantively against an amendment. Her Democratic colleagues, senators Harry Reid (NV) and Tom Daschle (SD) spoke briefly on procedural matters without offering resistance to the notion of one-man/one-woman marriages.

After Reid complained that the proposed amendment had not been subjected to the necessary hearings, Senator Rick Santorum (R-PA) responded that there had actually been seven hearings spread over multiple committees. This issue had been studied, Santorum said, resulting in the advancement of two different tracks. One is the original amendment proposed by Senator Wayne Allard (R-CO). Another approach aimed at modification of the Allard bill.

Reid urged the Senate to move to the resolution and have an up-or-down vote on it as quickly as possible. However, majority leader Senator Bill Frist (R-TN) countered that by doing so, it would not allow for the presentation of amendments.

The lone substantive arguments against the amendment came from Feinstein, who, oddly enough, cited the pro-family organization, Family Research Council, in her remarks.

“I celebrate marriage,” Feinstein said. “I understand the difficulties in working to keep it together. But I believe this is a waste of time. The votes are not present to submit this amendment to the States. The timing is just a few months before an election, and family law has always been relegated to the States. This essentially would be the first departure from that. The tenth amendment of the U.S. Constitution clearly states: “The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.”

Feinstein said that marriage is not once mentioned in the Constitution and she said most authorities believe it to be a power reserved to the States.

“Furthermore, the courts have long held that no State can be forced to recognize a marriage that offends a deeply held public policy of that State. States, as a result, have frequently and constitutionally refused to recognize marriages from other States that differ from their public policy. Polygamous marriages, for example, even if sanctioned by another State, have consistently been rejected. Marriages between immediate family members have also been rejected by States, even if those marriages are accepted in other parts of the country. In no case that I know of has the full faith and credit clause of the U.S. Constitution been used to require a state to recognize a type of marriage that would violate its own strong public policy. So states have been on their own with respect to family law, including marriage.”

Feinstein cited a July 9 press release by The Family Research Council which reported that nine states already have state constitutional amendments on the ballot this fall, that number is expected to increase to at least 14 States, and 38 states have previously gone on record stating marriage is between one man and one woman. This issue is not a problem demanding an immediate solution, Feinstein argued.

“So why are we doing this?” Feinstein asked. “The only answer I can come up with is because this is political. It is to drive a division into the voters of America, into the people of America, one more wedge issue at a very difficult time to be used politically in elections.”

Santorum said: “It sort of bothers me a little bit when I hear the comment made -- and it has been made over and over, not only here on the floor but by many pundits -- about we have more important things to do. I cannot think of anything more important to America than family and marriage. I cannot think of anything more important than the basic social building block of our country, and that is what marriage is, that is what the family is. And it is in jeopardy. It is in serious, real jeopardy as a result of what the courts are doing--certainly in Massachusetts and potentially around the country -- what mayors are doing, what county executives are doing, and others who are unlawfully acting. But in the case of Massachusetts, under the color of law, at least, or maybe lawfully, if you concede that, they are reinterpreting the Constitution to change the definition of marriage.”

Allard reminded the Senate of committee discussion examining social phenomenon in Europe, particularly in nations with legal same-sex marriage.

“In the Scandinavian countries now, we have a greater incidence of babies born out of wedlock than are born in wedlock. We have countries, such as the Netherlands, just more recently accepting the idea of same-sex marriage which have been recognized prior to that as countries that valued the traditional institution of marriage and actually had a very low divorce rate and very low rate as far as children born out of wedlock. But when we look at the Netherlands now, we see, with the demeaning of the value of marriage, that there are more and more children being born out of wedlock. That is a disturbing trend to many of us.”

Allard recited the wording of his federal marriage amendment and then called for progress in the debate. “I am looking forward to hearing from the other side on this important issue,” he said. “So far, we have had red herring arguments and them wanting to talk about something else other than this amendment and the issues it brings up. I hope we can now settle down and get a good debate from the other side about why they don't think marriage ought to be defined as a union between a man and woman, or why they don't think this is a good amendment. So far we have heard argument on procedure and that doesn't get to the meat of the debate.”

Reid did take the opportunity on Monday to rise during the middle of the marriage debate to speak briefly about the war in Iraq. But the brief digression could not keep proponents from presenting arguments in favor of a marriage amendment.

“I think traditional marriage is good for everyone,” Santorum said. “It results in a healthier society, more stable children.”

Santorum pointed to the European nations mentioned previously and cited a gradual and systematic decline in heterosexual marriages.

“What happens is there is actually more sexual activity, certainly among multiple partners and, what?” Santorum asked. “Breakdown of the family, children being born out of wedlock, and communities and cultures in decay. That is what I see on the horizon for America. It is not the reaffirmation of marriage by including more people in it but the degradation of marriage because it becomes simply a social convention without meaning. One may say: What is the big deal? What is the problem if that happens? The problem, if we look at communities in America where marriage has broken down, we see communities that are not functioning very well. We see children who are the most at risk in our society because moms and dads are not around the home to provide for them. So we have community breakdown, we have family breakdown, and we have government intervention trying to repair this situation. There have been huge government expenditures over the last 40, 50 years trying to repair what is broken as a result of the family not being there to raise these children.”

A further deluding and debilitating of marriage is not in the nation’s best interests, Santorum said, because of the dire consequences that result: a breakdown in marriage results in with respect to children. When the nation gets further away from the ideal in marriage, children suffer and cultures die. This promotes a public good, the senator said.

Several Republican senators cited the research by Stanley Kurtz, author of the article, ``Decline in Marriage in Scandinavia and the Netherlands.” Kurtz revealed the reduction in the rate of marriage among heterosexuals and demonstrated that when marriage is changed it is devalued. “It does not become special,” Kurtz wrote, “it does not become unique. It is not reinforced by society as something as the ideal. As a result, people do not engage it.”

The countries of Denmark, Sweden, and Norway have either marriage or civil unions for same-sex couples. Sixty percent of first-born children in those countries are now born out of wedlock, a rate similar to the poorest neighborhoods in America.

“As a result, the government has to come in and bail out those communities because there are no unions, there are no families, there is no support network for these children,” Santorum said. “In middle-class and upper middle-class, socialistic, equality-driven Scandinavia, where there are no ghettos of poverty that we see in America, 60 percent of first-born children in these countries are born out of wedlock. Why? Because marriage is not important. It has no meaning. So people simply do not get married.

Numerous senators also discussed the problem of judicial activism and expressed doubts in the ability of the Defense of Marriage Act (DOMA) to protect traditional marriage.

Santorum said, “The only way for us to have the American people define what marriage is, instead of State courts defining what marriage is, is through the constitutional amendment process. If my colleagues believe in their heart, for the betterment of America, that marriage must be maintained for the good of the American family as a union between a man and a woman, there is only one choice, and that is to vote yes. Anything short of that is a hollow act, is a smokescreen, to the American people and to their constituents. My colleagues cannot claim to be for something and then vote against it and let someone else do the exact opposite of what they say they want, and that is what the courts will do. So I plead with my colleagues, who I believe have every good intention, to search their souls and to think about the consequences for America.”

Senator Orrin Hatch (R-UT) said the debate over marriage boils down to two fundamental questions: “Should our goal be to keep marriage limited to a man and a woman? And, if so, is amending the U.S. Constitution necessary to accomplish that goal? The answer to both questions is yes.”

Hatch said public opinion polling runnings 2-1 in favor of traditional marriage. “These polls tell something about the opinions of individual Americans, again, that flies in the face of having four justices in Massachusetts decide under the full faith and credit clause to impose this upon everybody in America rather than have the people in America or the people within the individual states decide these matters. This issue is not going to go away. Whether traditional marriage should remain what it always has been, the goal most Americans support, requires amending the U.S. Constitution.”

Hatch said the constitutional process directly involves states in this issue because amendments require state ratification.

“The judiciary has been flexing its cultural muscles for decades, imposing its own values upon the American people, supposedly in the name of the Constitution,” Hatch said. “There can be no doubt that traditional marriage is in the path of what Supreme Court Justice Antonin Scalia, in 1992, called the judiciary's ‘social engineering bulldozer.’”

Hatch argued we have had traditional marriage in this world for over 5,000 years, it is not some itty-bitty, inconsequential, off-the-subject debate, but rather one of the most important debates in history. “If we don't stand up for traditional marriage at a time when a lot of things seem to be falling apart, we are going to reap the whirlwind,” he said.

In conclusion, Hatch argued: “Gay people have a right to be free, to not be discriminated against. They have a right to live in their relationships within the privacy of their own homes, just like others who have different approaches toward life. But that doesn't give them or anybody else the right to define traditional marriage.”

Senator Jim Bunning (R-KY) was once a star major league baseball pitcher. On Monday, he pitched for defense of marriage: “Our Nation faces a potential disaster. I hope my colleagues in the Senate realize we have a responsibility to affirm the ideal of marriage and protect one of the most basic building blocks of our society: the family. … It is a shame that some of my colleagues in the Senate do not recognize the pressing need before us to safeguard a cultural institution that has served human beings so well for thousands of generations. We must act before it is too late.”

Bunning also said, “Traditional marriage has been central to the understanding of family in Western culture from the very beginning, and the central reason for marriage has been for the rearing of children. Children have the best chance to succeed when they are reared in stable, traditional families. A loving family provides the foundation children need to succeed, and strong families with a man and a woman bonded together for life always have been and always will be the key to such families.”

Americans have been backed into a corner, Bunning said, by activists who “will not stop trying to impose their extreme views on all of the rest of us, and they have now plotted a state-by-state strategy to increase the number of judicial decisions redefining marriage without -- I say without -- the voice of the people being heard.”

“Those of us who defend traditional marriage were not looking for this struggle, but it has been forced upon us, and I feel we must do what we can to prevail,” Bunning said. “We believe there is little else left more important to our Nation and to our future. When a small handful of unelected activists take it upon themselves to rewrite laws and to try to overturn cultural institutions we have always relied upon, then we must use every tool at our disposal to defend what we believe is right.”

Also rising in support of S. J. Res. 40, the Federal marriage amendment to the U.S. Constitution, was Senator Jon Kyl (R-AZ). “I do so with conviction that this course is the right one, but with considerable frustration that we have come to this point as a nation. This constitutional amendment, in my view, should not be necessary,” Kyl said. “The core definition of Western civilization's most stable and important social institution, traditional marriage, should not be jeopardized by litigation and court decisions. Activist trial lawyers should not be filing lawsuits asking courts to change the basic rules of marriage for all society. Judges should not be denouncing traditional marriages as a stain on the Constitution that must be washed away. But that is where we are: Confronting a coordinated, well-funded, and persistent campaign in the courts to undermine marriage.”

Kyl said he believes traditional marriage is an institution worth saving. “I believe we send a very important message to our children when we stand up for the institution of marriage. We tell them that marriage matters; that traditional family life is a thing to be honored, valued, and protected. We tell them marriage is the best environment for raising children, and we tell them every child deserves a mother and a father. We point them to the ideal and that the radical redefinition of marriage through the court threatens this ideal. We cannot strip marriage of its core--that it be the union of a man and woman--and expect the institution to survive, as we have come to know it.”

Kyl specifically identified the greatest threats to traditional marriage. “There is in this country a collection of activist lawyers who genuinely and sincerely believe marriage should be redesigned so couples of the same sex could marry,” he said. “Groups such as the ACLU, Lambda Legal, and Gay and Lesbian Advocates and Defenders, GLAD, and others have frankly explained their strategy. Their goal is to use the courts to force the entire Nation to adopt same-sex marriage. They understand they cannot do it through the democratic process convincing people of the wisdom of their position, but must rather succeed in convincing judges to overturn our long-time understanding of the meaning of marriage.”

On May 17, the Goodridge decision took effect in Massachusetts, and the State began issuing same-sex marriage licenses. Many same-sex couples from other States traveled to Massachusetts and then returned back to their own States. There are now more than 35 lawsuits pending in 11 States across our Nation in which States' marriage laws have been challenged as unconstitutional, States such as California, Florida, Indiana, Maryland, Nebraska, New Jersey, New Mexico, New York, Oregon, Washington, and West Virginia. Many of these lawsuits are brought by the same lawyers who filed suits in Vermont and Massachusetts, activists from the ACLU, LAMBDA Legal, and GLAD in particular. In fact, the lawsuit in Maryland was filed only last week by the same legal team at the ACLU that is managing lawsuits in New Jersey and elsewhere. Many more lawsuits surely will follow.

Kyl predicts there will be lawsuits seeking to strike down the Defense of Marriage Act so that same-sex couples can get access to Federal benefits such as tax filing status, Social Security benefits from same-sex partners, and many of the other benefits or rights that the Federal Government grants to married spouses. Already, for example, there is a lawsuit pending in Florida that directly claims that DOMA is unconstitutional. Activists will file lawsuits trying to force other states to recognize same-sex marriages in Massachusetts and any other place where they can convince judges to change the marriage laws against the people's will. Such a lawsuit currently is pending in Washington State, where a same-sex couple received a marriage license in Oregon and now insists that Washington must recognize that marriage, despite clear State law to the contrary. There will be many other lawsuits that cannot be anticipated that will happen as same-sex married couples move from state to state, as many Americans nowadays do. These couples will try to get divorced when marriages fail. They will try to execute and enforce wills when one of them dies. They will have all kinds of run-of-the-mill business disputes as happens in other situations, and courts will struggle to figure out how to treat their legal relationships when these disputes arise.

Eventually, Kyl predicts, legal activists who are managing this attack on traditional marriage laws will decide that they are ready for the big case, a case before the U.S. Supreme Court. “After wreaking havoc on traditional marriage throughout the Nation, these activists will tell the Supreme Court that the confusion in the States demands a national solution. They will argue, not unpersuasively, that we are one nation, that we cannot long function with such fundamentally inconsistent understandings of marriage. When that day comes, when the U.S. Supreme Court is presented with the opportunity to rule traditional marriage laws unconstitutional, it is very possible that the Court will side not with the oft-surveyed views of the American people but rather will find a constitutional reason to say the people have been wrong all this time.” If the Court advocates for same-sex marriage, it will be very hard for the people to undo, Kyl said.

“The only way the American people will ever have a voice in this matter is if Congress sends to the States for ratification a constitutional amendment defining and protecting traditional marriage,” Kyl said. “Federal DOMA, which has already been challenged, could easily be struck down by the courts. Marriage laws in the States likely will be struck down just as happened in Massachusetts. No Federal law, no Federal regulation, no State law, no State constitutional amendment, can prevent this from happening. The only solution is an amendment to the Constitution and the only question is when to start the process. The more time that elapses with conflicting state law and same-sex couples seeking to have their marriages recognized in different states, the more our society will be conflicted and the more lawyers and judges will be making the decisions.”

Kyl said the constitutional process is the most democratic, the most grassroots, the most respectful process available for the establishment of national policy.

Nothing in the marriage amendment prevents the citizens of a state from acting through their regular legislative process to grant benefits to same-sex couples in that State. So if a State wanted to create marriage-like ``civil unions,'' it could still do so. A legislature's only constraint is it could not create same-sex marriage. Congress cannot punt on the protection of marriage, in Kyl’s view.

Senator Sam Brownback (R-KS) recognized that “This is a critical battle. We are at a critical stage in the culture of the United States. What happens on this particular issue will have a profound impact on the future of the United States of America. Let us be clear, this is not a battle over civil rights; it is a battle over whether marriage will be emptied of its meaning in contradiction to the will of the people and their duly elected representatives. We are a democracy, not a people ruled by a judicial dictator. In order to reach a predetermined outcome with regard to marriage, judges such as the four judges responsible for the Goodridge decision in Massachusetts are disregarding thousands of years of custom and experience, the laws of every society, and the beliefs of every major religious tradition. Unless action is taken by Congress to protect marriage by means of a constitutional amendment, the marriage laws of 50 States will be at the mercy of Federal judges, and marriage itself will be redefined out of all recognition.”

The time has come to act, Brownback said. “If we continue to let activist judges determine the fate of marriage, the battle may be lost and we could lose the institution of marriage. Marriage can be lost.”

Brownback quoted the late Senator Daniel Patrick Moynihan, who once said: “Marriage is at the center of the family, and the family is the basis of society itself. The Government's interest in the marriage bond, and the reason it treats heterosexual unions in a manner unlike all other relationships, is closely related to the welfare of children. Government registers and endorses marriage between a man and a woman in order to ensure a stable environment for the raising and nurturing of children. Social science on this matter is conclusive: Children need both a mom and a dad.”

Brownback said it is ironic that governments that stand to benefit in so many ways from intact, traditional unions have, in recent years, seemed determined to follow policies that have the effect of weakening marriage.

Minority leader Tom Daschle (D-SD) argued for an up-or-down vote on the amendment, and he agreed with a recent statement by Lynne Cheney, wife of Vice President Dick Cheney, that this issue ought to be left to the states.

“There is no argument, in my view, among many of us, most of us, about whether a marriage ought to be between a man and a woman,” Senator Daschle said. “It ought to. The real question is whether or not we ought to amend the U.S. Constitution, and then if we open it up to amendment, whether we ought to amendment it in other ways as well, including campaign finance reform, maybe victims' rights, maybe limitations on the first amendment. Others have suggested an amendment on flag burning. There are a lot of amendments out there. In fact, I am told in the 108th Congress, just last week I was informed that 67 constitutional amendments have been proposed in this Congress, in the 108th Congress. I am quite sure, of course, that not all of them were offered in the Senate.”

Majority leader Frist said the marriage amendment debate could be wrapped up by Wednesday, July 14.