Federal Marriage Amendment - Motion to Proceed - Resumed

CONGRESSIONAL RECORD
SENATE
FEDERAL MARRIAGE AMENDMENT-MOTION TO PROCEED-RESUMED

Mr. DURBIN. Mr. President, for those who are witnessing this debate on the floor of the Senate, it is a historic moment. It is rare the Senate engages in a debate on the question of amending this document, the Constitution of the United States. There are so many things that divide us on the floor of the Senate, between Republicans and Democrats, but there is one thing we are united behind, and that is our oath of office. That oath of office is explicit. This, in part, is what it says. Each of us takes this oath. To the best of our ability we will:

. . . preserve, protect and defend the Constitution of the United States.

Isn't it interesting that when this Constitution was written, our Founding Fathers wanted to make certain that whoever served as President, Vice President, Member of the House or Senate, would not swear their loyalty to the United States of America but would swear their loyalty to this document. You could not become a Member of this body unless you were prepared, under oath, to say you would preserve, protect, and defend the Constitution of the United States.

The Founding Fathers understood the importance of this document they had written. They knew it embodied within its four corners the basic principles of America. It wasn't a dead document. It was a living document which could be changed. But I think the oath of office which each of us takes is a reminder of our solemn responsibility when it comes to this Constitution.

We may propose amendments to laws, make motions on the floor, pass resolutions, make our speeches, but I am one who believes when it comes to this document we have a special responsibility. It is a responsibility which requires respect and humility-humility.

Before this Senator from Illinois will propose a change in one word in this Constitution of the United States of America, I have to be convinced, I have to be absolutely sure it is essential-essential for this union to continue and essential for the rights and liberties of every American citizen.

Oh, we debate bills back and forth. We change sentences, we change punctuation, we make wholesale changes in the law. But the laws come and go, as Members of the House and Senate come and go. This document endures.

Over 11,000 times Members of the Congress have proposed changing this document. Over 11,000 times they have come to the floor of the House or the Senate and said: The Founding Fathers didn't get it right, they didn't consider this possibility. And over 11,000 different times, overwhelmingly, their suggestions have been rejected. Why? Because of the respect and the humility which each of us brings to this debate on a constitutional amendment.

Today, those who are witnessing this debate are witnessing another attempt to amend the Constitution of the United States. How often has it been done? Since Thomas Jefferson's Bill of Rights-which originally proposed, I believe, had 12 amendments; only 10 were originally approved-we have only amended this document 17 times. One time we realized we made a mistake. We passed an amendment prohibiting the sale of liquor in the United States and a few years later we repealed it. But by and large, only 17 times in the course of the history of the United States of America has this Congress said this document is insufficient; this document does not meet the needs of America; this document must be changed.

To those who are following this debate, and to my colleagues, I will tell them the proposed amendment before us today does not meet the test. It does not meet the requirement to say to those who founded this Nation and to all who carried on since that we need to pass this Federal marriage amendment. I believe it is plain wrong. It is wrong in three specifics.

First, we are talking about the institution of marriage. Traditionally, marriage is defined by each and every State. One
State establishes a certain age of eligibility. Another State will establish a certain blood test that may need to be taken. Another State will limit whether certain members of families can marry. All of these provisions and limitations on marriage are State and local responsibilities. Not once will you find in this Constitution of the United States the requirement that the Federal Government in Washington establish a standard for marriage in America. So what we are discussing today is a proposed amendment to the Constitution that is clearly outside of the purview and scope of this Constitution which we have sworn to preserve and defend.

Second, there is no court ruling that brings us to this moment in this debate. It is not as if some Federal court or even a State court has said this Constitution requires that people of the same gender be allowed to marry. Not one single court in America has said that. So we come here today, the argument being made that we should preempt the possibility that at some time in the future some court will decide that in fact a marriage between people of the same gender in one State must be upheld in other States. There has never-repeat, never-been a case in any State or Federal court that says that. Yet we come to the floor of the Senate today as if the decision were handed down last week and we must stand up once and for all to preserve the right of marriage to be confined to an institution between a man and a woman. It is traditionally a State decision on what defines marriage. There is no controversy that brings us to the floor today.

What is even worse, we come to this debate with this constitutional amendment which has been proposed, and we come to the floor to debate it without a single markup by the Senate Judiciary Committee to debate the language that is being proposed. Does that show respect for the Constitution? Does that show the appropriate humility which every Member of Congress should have? Of course it does not. Those who wrote this amendment were changing it by day. And now they want to change it again. They tell us the language given to us last week has to be changed again-maybe twice.

Does this strike you as a work in progress? Does this strike you as the kind of language which should be put in this enduring document? Or does it strike you that we are taking a roller to a Rembrandt; that we are suggesting changes in our Constitution which have not met the test, the test that they address an issue of enduring significance and that the language crafted should stand beside our Bill of Rights?

Today they argue: We need to make a few amendments in this language. We have been thinking it over this week.

What is wrong with this picture? Shouldn't we take a step back and ask whether this is necessary? Ask whether, in fact, there is a court decision which requires it? Ask whether the language which we are proposing is language which will endure for generations to come?

If we cannot answer each of those questions in the affirmative, then for goodness sakes why don't we move on? I will tell
you why we are not. Because this debate is not about changing the Constitution-no. They say in politics for everything that is done, there is a good reason and a real reason. The good reason that is being given for this debate is to change the Constitution. That is not the real reason. The real reason is to change the subject of the President's election campaign because the Republican side of the aisle and those who are supporting this administration don't want to debate this Presidential election campaign on the issues most Americans identify as important in their lives. They don't want to debate the President's economic policy and the squeeze it has put on middle-income families. They don't want to debate what is happening in Iraq. They want to change the subject. They want to debate the future of marriage in America. That, to them, is more important and that is why we are here today. That is why there are statewide referenda in many battleground States like Missouri. And that is why we are hellbent to consider this amendment literally days before a certain political party coincidentally has its convention in the State of Massachusetts. That is what this is all about-changing the subject of the Presidential campaign.

Oh, they tell us in the Judiciary Committee: Incidentally, we are going to bring the flag-burning amendment up again, too. We have had this amendment up before us at other times, but they are anxious for us to vote on this again before the election campaign.

Do you know what I think we need? I don't think we need an amendment to the Constitution. I think we need a permanent law of the land that says there will be no constitutional amendment which will be proposed in a Presidential election year. Frankly, that will cause many of my colleagues to suppress the urge to use this Constitution as some sort of a political platform to try to win votes in an election.

When you take a look at this particular amendment, you find, of course, that we are considering and taking up many days of debate rather than considering other issues we ought to be talking about here on the floor of the Senate.

Do you recall the press conference last week when the Secretary of Homeland Security, Tom Ridge, told America of the danger of al-Qaida, a real danger; that they are plotting massive casualties to be brought on victims in America? We didn't know where or when, but he warned America, along with the Director of the FBI.

Then you probably read yesterday speculation about whether we might have to postpone a Presidential election because of terrorism. And you think to yourself: For heaven's sake, I guess America is still in danger; and sadly we are. Then you might think to yourself: I certainly hope the men and women serving in the Senate are doing everything they can to make our Nation safer. That is a natural reaction, one which you might expect.

All you have to do is look at the calendar of business of the Senate on the desk of every Senator and turn to the back page. You will find the status of appropriations bills that have not been considered by the Senate. Among the first two bills on the list is the Homeland Security appropriations bill-sitting on the calendar of the Senate for almost a month.

We are warned by this administration that our security is in question, that America may be in danger, and we are told by the Republican leadership on the Senate floor that we don't have time to appropriate the money to make America safer. Instead, we are going to debate a constitutional amendment over an issue that has not even reached the point in any court in the land to require a constitutional amendment.

That is just one of many issues that we could be considering.

What have we done to try to reduce the squeeze on middle-income families from increased costs for health care, increased costs for prescription drugs, increased costs for gasoline, increased costs for college education? The answer is nothing. We are too busy debating a constitutional amendment about an issue that does not exist. It says something about the priorities of the leadership.

We have not passed a budget resolution this year. We have 12 appropriations bills, including the Department of Homeland Security, that have not been enacted. This is all about changing the subject.

Paul Weyrich, CEO and chairman of the Free Congress Foundation, was very direct and blunt. He recommended that the President "change the subject" from Iraq to the Federal marriage amendment. It won't work because we pick up the newspaper every morning and we are reminded of the brave men and women in uniform who are literally risking their lives in Iraq. We cannot, we should not, and we will not forget them. And our attention will not be diverted from the danger to their lives and the prayers and hopes of their families. Yet that is the political agenda. That is what is before us.

We have bypassed the Judiciary Committee. The suggestion has been that we take this amendment which has been proposed, change it one, two, three, or four times, and vote on it. But the changes may include adding other amendments to it. Is that possible? Could we put in more than one constitutional amendment? Of course. So we have turned into not a Senate but a constitutional convention. Is that what we are supposed to be doing, rather than appropriating money for homeland security, rather than addressing the timely issues that America's families are facing? I hope not.

We have had one hearing on the text of a proposed amendment, and it was less than 24 hours after a new version had been written. This constitutional amendment is changing on a regular basis.

I might say that Senator Cornyn of Texas, on Friday, came and spoke on the Senate floor. He said those who oppose this constitutional amendment, as I do, "have chosen to boycott good faith desire to have an honest discussion about the issue." That was his quote. Senator Allard and others have said similar things.

For the record, the Judiciary Committee, the committee of jurisdiction, has held four hearings on this issue. Senators FEINGOLD, KENNEDY, and I attended all four of those hearings. There was no boycott involved. We attended those hearings and asked questions about this issue. But there was never a markup. It was brought to the Senate floor with changes that are being made as we speak.

In the past, Senator Hatch, now chairman of the Senate Judiciary Committee, rejected this. He said you can't bring a constitutional amendment to the floor without at least going through the Judiciary Committee and looking at the language and seeing if there are better words. Here is what Senator Hatch said in 1979:

To bypass the committee is, I think, to denigrate the committee process, especially when an amendment to the Constitution of the United States of America, the most important document in the history of the Nation, is involved.

That is what Senator Hatch said 25 years ago. But that is not the process he has followed as chairman of the committee
today. He has taken a much different path.

This would be, incidentally, only the second time in history in which we would have enacted an amendment to the Constitution of the United States which would restrict the rights of American citizens.

Historically, our amendment process has been to expand the rights and liberties of Americans, African Americans, women, and others to give them voice in the democratic process. This would be the second time in history in which we would restrict the rights of Americans. The other time, as I mentioned earlier, we said with the prohibition amendment that we would restrict the right to sell liquor and alcoholic beverages in America. That is the one other time we did it. We did it because of a temperance crusade brought on by some religious groups and others, and then realized a few years later that it was wrong. This would be only the second time in history when we would use the amendment process to restrict the rights
of American citizens.

We have no controversy at hand. The proposed amendment would be unique in that no constitutional amendment has been ratified in response to a State court ruling. There are four constitutional amendments that overrule Supreme Court decisions, but no constitutional amendment has ever been ratified in response to a nonexistent Supreme Court ruling. That is the case here.

As I listened to those on the other side arguing earlier, I couldn't believe some of the things they said. The Senator from Texas said when judges in Massachusetts mandate same-sex marriage on our Nation, they export that marriage to other States. That is not a fact. There is nothing that has happened in the State of Massachusetts which has changed the marriage laws in Illinois, in Wyoming, in Nevada, in Texas. Nothing they have done changes the standard for marriage in my State.

He went on to say that it is a question of whether the people shall have a voice in this process. I certainly believe the people of America should have a voice in the promulgation of law. But in this situation, the people of Massachusetts have a voice and have a process and have before them a constitutional amendment which will eliminate same-sex marriage but protect the rights of civil union. The people of Massachusetts will ultimately vote on that question as will their legislators.

If you want to give the people of Massachusetts a voice in the process, they already have it. They are exercising it. There is no need for a constitutional amendment to either embellish it or reduce it in any way.

Then, the Senator from Texas said we on the Democratic side were trying to stifle debate on this constitutional amendment by not allowing the Republicans to amend it two, three, four times, or more. We are not trying to stifle the debate. That is what this is all about. This exchange is about debate. But how can you debate a moving target? How can you debate a proposal to the Constitution of the United States which may change 15 minutes from now, an hour from now, tomorrow, or Thursday? Shouldn't the Republican majority that brings this to the floor meet their solemn obligation to put language before us befitting the Constitution and not make this a construction project, a work in progress? That is what they want to do.

The Senator from Nevada on the Republican side said earlier that judicial activists are taking away the power of the legislative branch. That is not a fact. What happened in Massachusetts happened under the Massachusetts Constitution, which is being amended by their legislature as required and submitted to the people of Massachusetts. If the people are to have the final voice on this issue in Massachusetts, that is exactly what is going to happen.

The text of this proposed constitutional amendment, incidentally, is contradictory and unclear. There are some who oppose same-sex marriage but believe that civil unions should be allowed, as they are in many States, and as recognized by many private companies. But the language of this proposed Federal amendment, as it stands today-it may change-says:

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

The operative words that should have been debated in the committee, and should be debated here are "the legal incidents thereof."

What does it mean? Let me give a practical example. In the District of Columbia, they have enacted a law that if you have a partner you are living with of the same gender, you can declare that for purposes of being covered by your partner's health insurance. If one person in that household, two men or two women, is working, and one is not, the person working can claim the partner living at home as covered by the same health insurance policy just as it applies to men and women in marriage.

What is wrong with that? What is so scandalous about that, that people desperate for health insurance coverage would have someone they love and share a home with be covered by health insurance?

Yet this constitutional amendment would put that and other legal incidents of marriage, such as civil unions, in jeopardy.

Let me note what has been said by Vice President Cheney. He was involved in a debate with Senator Lieberman 4 years ago in the Vice Presidential race, and this issue came up. Let me read what Vice President Cheney said when it came to the issue of defining marriage:

It's really no one else's business in terms of trying to regulate or prohibit behavior in that regard. . . . I think different states are likely to come to different conclusions and that's appropriate. I don't think there should necessarily be a federal policy in this area.

That is what Vice President Cheney said. I think he is right.

Let me read what Vice President Cheney's wife said. I am sure it took courage for her to say it, but she did just this week. Lynne Cheney, the wife of Vice President Cheney:

People should be free to enter into their relationships that they choose. When it comes to conferring legal status on relationships, that is a matter left to the states.

I am sure that did not make the Vice President or his wife popular in the White House, maybe not among their Republican colleagues, but they are right. This is a decision which clearly should be left to the States.

Today at lunch, the Senate Historian told us a story of Aaron Burr, a man who had served as Vice President and a man who left the Senate under extraordinary circumstances on March 1, 1805. This is what Aaron Burr said as he left the Senate about this Senate:

. . . is a sanctuary; a citadel of law, of order, and of liberty; and it is here-it is here, in this exalted refuge; here, if anywhere, will resistance be made to the storms of political phrenzy and the silent arts of corruption; and if the Constitution be destined ever to perish by the sacrilegious hands of the demagogue or the usurper, which God avert, its expiring agonies will be witnessed on this floor.

You don't hear many speeches like that on the floor of the Senate anymore, but Aaron Burr was correct. This is where the debate has to take place. This is where this debate on this constitutional amendment has to end. This is where Members of the Senate who have sworn to uphold, protect, and defend this Constitution of the United States will remind our colleagues to take a step back and show the respect and humility which this document deserves. To let this constitutional amendment process be taken captive by those who are trying to win votes in November is wrong. Whether it is done by Republicans or Democrats, it is just wrong. I think the American people understand that.

There are strong feelings about a man and a woman that are shared by me and by others, but we also have strong feelings about this document, a document which I have taken an oath under God to uphold and defend. And I will do that by opposing this amendment.

Mr. DURBIN. I am happy to yield.

Mr. REID. Is the Senator aware, through the Chair I direct this question, in the State of Nevada, on two separate occasions, there was a vote by the people of the State of Nevada on whether they should include in the Nevada State Constitution a prohibition for gay marriage; is the Senator aware that took place?

Mr. DURBIN. I was not aware.

Mr. REID. I say to my friend, it has taken place. It was long and arduous. It took a period of years to accomplish.

Would the Senator agree that the State of Nevada had the right to do that; whether they agree with the conclusion or not, didn't they have the right to do that?

Mr. DURBIN. Certainly.

I say to the Senator, that is the argument that has been made on the other side, that the people should be allowed to
speak on the issue, and if that is the case, in Nevada, Illinois, or wherever it might be, then honoring that decision would seem to be consistent with the establishment of all America.

Mr. REID. Through the Chair, I further question my friend, is the Senator aware in that debate over a period of years that lots and lots of money was spent in ads for and against the amendment, door-to-door activities took place, many more grassroots activities, editorials in newspapers, all in the State of Nevada? Whether you were for or against the ban on same-sex marriages, these activities took place in the State of Nevada; and now in the State of Nevada, in its constitution, there is a prohibition.

The people of the State of Nevada had a right to do that; didn't they?

Mr. DURBIN. I believe they do. I think the Senator is correct.

Mr. REID. Is the Senator also aware that we have been told the reason we are not going to vote on this amendment, Resolution 40 now before the Senate, is that Senator GORDON SMITH has another amendment he wants to offer and he does want a vote? Has the Senator been told that is the fact?

Mr. DURBIN. Yes, I have.

Mr. REID. Through the Chair, I direct this to the Senator from Illinois. From today's Congressional Daily, p.m. edition, it says: Senator GORDON SMITH, Republican from Oregon, today denied that he has insisted the Senate vote on his alternative constitutional amendment banning gay marriage, telling reporters he favors Minority Leader Daschle's proposal to vote up or down on the underlying amendment sponsored by WAYNE ALLARD, Republican from Colorado.

Is the Senator from Illinois aware that Senator Daschle has requested on more than one occasion that we have an up-or-down vote on the resolution that is now before this Senate, that we have all been studying and doing our best to understand, that we should vote up or down on this? Does the Senator agree that is what we should do?

Mr. DURBIN. Yes, I do. Let's bring this to a vote. The sooner, the better.

Mr. REID. The Senator is aware, however, is he not, as stated by the majority, this is a work in progress? They, obviously, are not sure what they want to vote on. Or is it just a political issue and they want to vote on nothing, they want to have another class action where they had victory in their grasp but they did not want to work on the substance; they wanted to maintain a political issue that Democrats were obstructing, which we were not? Is the Senator aware, it could be the same situation?

Mr. DURBIN. I say there is a striking similarity. It appears they want to vote more than they want an amendment. Let's be honest about what it is about. They want to put some Senators on the spot. Trust me, the ads will be running, if they have not started already, in States across the Nation. If you oppose this constitutional amendment, they will say you are against traditional marriage. Virtually every one of our colleagues on both sides of the aisle, for that matter, support traditional marriage between a man and a woman.

I have been married 37 years, and I think the Senator from Nevada may have been married longer. I respect this institution and have committed my life to it with my wife. I think we all understand that. But understand, as well, a "no" vote on this amendment will be used for political purposes to change the subject of the election campaign.

I say to the Senator from Nevada, as my time is closing, there is one point I would like to make. Things have changed in my life experience, and in many others', over the time I have been in the Congress and even before. There was a time when, if there were gay members of a family, people just did not talk about it. No reference was made to it; very little was said about it. It was the aunt or uncle who never got married and no one has talked about it.

That is changing in families across America. People have had the courage to come forward and say: I have a different sexual orientation. For some reason, God has made me with a different nature. I think more and more families are accepting of that fact, as they should be. I don't know what God's plan was in bringing a man or woman to this Earth with a different sexual orientation, but in many cases they have.

All we have said, those Members on our side, is though we may not support gay marriage or marriage of the same sex, we ask for tolerance and understanding.

The phone calls I have been receiving in my office have been phone calls generated by people who sincerely support this amendment and many who have some different agenda. It is, unfortunately, a very strident and hateful agenda. I hope that whatever the outcome of this amendment, we will say to the American people: Be tolerant; be understanding. Some people are different but they are our family. They are our neighbors. They are our fellow Americans.

This proposed constitutional amendment is divisive and unnecessary, and contains many ambiguities and unresolved issues that have not been examined or considered by the Senate Judiciary Committee.

We have less than 30 legislative days left this year. There already are more pressing issues than we could possibly address in that short time, without spending this week on a proposed constitutional amendment that even its supporters acknowledge does not have the votes to succeed.

In light of Secretary Ridge's announcement last week, we should be focusing our attention on homeland security, including port and rail security.

We must address the everyday needs and concerns of American citizens, especially those being squeezed in the middle class.

Since President George W. Bush has come to office, average weekly earnings have risen only 1 percent, while gas prices have risen 25 percent; college tuition has risen 28 percent; and family health care premiums have skyrocketed by 36 percent.

Unfortunately, this Senate has ignored these concerns and has done nothing to increase wages. For example, we have not increased the minimum wage in almost 7 years, and the benefit of that increase has been completely erased by inflation.

Even worse, unless Congress acts to restrict the President's proposed overtime regulations before our August recess,
those regulations will slash the paychecks for thousands of Americans currently receiving overtime compensation by 25 percent.

Finally, we still have not passed a budget resolution this year and have 12 appropriations bills that must be enacted.

So why are we debating this constitutional amendment instead of addressing these more pressing issues?

I suggest that there is an effort here to try to divert American families from their real concerns.

In fact, this is a strategy that was advocated by Paul Weyrich, CEO and chairman of the Free Congress Foundation, who recommended that the President "change the subject" from Iraq to the Federal Marriage Amendment.

We must not allow for such politicization of our Constitution-our Nation's most sacred document. That is why I believe we must ban the proposal of constitutional amendments in a Presidential election year-certainly within 6 months of an election.

By considering this issue outside of Presidential election years, we may be better able to consider the implications of this proposal without added political pressures. This may be one reason why only 3 of the 27 amendments to our Constitution have been passed by Congress in Presidential election years.

Of course, I do not mean to imply that those who support this amendment have only political motives. Some of my colleagues on the other side of the aisle sincerely believe that no issue is more important than this one.

However, the Judiciary Committee simply has not given this proposed constitutional amendment the thorough and
measured consideration worthy of a possible change to our constitution-certainly not if one believes this is the most
important issue facing our society today.

During the 108th Congress, the Senate Judiciary Committee has held hearings on four proposed constitutional amendments: victims rights, flag desecration, the continuity of Congress, and this one.

Three of those proposed amendments have been debated and marked up by the Constitution Subcommittee, following the long-standing tradition of our committee. The amendment today is the only one that bypassed this traditional consideration.

It is ironic that the victims' rights and flag desecration amendments have followed the committee's traditional process,
even though both have been considered by the Senate in the past, while this proposed amendment-which has never been considered by the Senate before-bypassed the full committee and subcommittee markups and barely even had a hearing.

Although the Judiciary Committee and Constitution Subcommittee have held four hearings on the issue of same-sex marriage, only one hearing was on the text of a proposed constitutional amendment-and that hearing was held less than 24 hours after this new version of the proposed amendment was introduced.

Furthermore, unlike our committee's hearings on the victims' rights amendment and flag discretion amendment, the only hearing on the text of this proposed amendment did not have a representative from the Department of Justice to share the administration's views.

On the issue of hearings, before I go further, I would like to respond to Senator Cornyn, who on Friday said that in committee hearings on this issue, Senators who oppose this constitutional amendment "have chosen to boycott a good-faith desire to have an honest discussion about this issue." Senator Allard and others have made similar comments.

For the record, the Judiciary Committee-as the committee of jurisdiction-has held four hearings on this issue. Senators FEINGOLD, KENNEDY, and I attended all four, and at each one, Democratic Senators outnumbered Republican Senators.

This is hardly evidence of a refusal to engage in an honest discussion. In fact, just the opposite is true: We are asking for a full and thorough debate-but in the committee of jurisdiction, where such consideration is not only appropriate, but necessary, before we debate this proposal on the Senate floor.

This request is the same as the one made by Senator Hatch in 1979, when a constitutional amendment regarding the direct election of the President and Vice President bypassed the Judiciary Committee and was debated on the floor.

In that debate, Senator Hatch, then ranking member of the Constitution Subcommittee, said:

To bypass the committee is, I think, to denigrate the committee process, especially when an amendment to the Constitution of the United States of America, the most important document in the history of the Nation, is involved.

Senator Hatch's argument prevailed, and the proposed constitutional amendment was referred to the Judiciary Committee by unanimous consent.

Unfortunately, Senator Hatch has taken a different path with this proposed constitutional amendment, which is only the second constitutional amendment in more than a decade to be debated on the Senate floor after being placed directly on the Calendar without committee referral or report.

I believe anything less than full consideration and debate by the Judiciary Committee not only would denigrate the committee process, but also would be a disservice to those who sincerely believe this is the most important issue facing our country. Without such examination, many issues in the proposal before us today will remain unresolved and unclear.

The most important issue we must resolve is whether a constitutional amendment regarding marriage is necessary.

I am aware that Article V of the Constitution provides for amendments, and I agree that the Constitution is a living document.

However, as James Madison wrote in The Federalist No. 49, the Constitution should be amended only on "great and extraordinary occasions."

Our Nation has heeded that advice, and although there have been more than 11,000 proposed constitutional amendments since 1789, we have amended our Constitution only 27 times, including the adoption of the Bill of Rights in 1791.

We must continue to approach constitutional amendments with great humility and respect. To do otherwise would be to
take a roller to a Rembrandt.

The last time Congress submitted a constitutional amendment that was ratified by the States was more than 30 years ago, when the voting age was lowered to 18. That amendment was appropriate because it followed the principle of six other constitutional amendments that expanded voting rights.

By contrast, the proposed amendment we are considering today would be the first constitutional amendment to restrict the rights of individuals since the 18th Amendment regarding Prohibition was ratified in 1919. Fourteen years later, that amendment was repealed.

This proposed amendment also would be unique in that no constitutional amendment has been ratified in response to a State court ruling.

Furthermore, although there are four constitutional amendments that overruled Supreme Court decisions, no constitutional amendment has been ratified in response to a non-existent Supreme Court ruling. In other words, this proposal is a solution in search of a problem.

In 1996-another Presidential election year-Congress passed the Defense of Marriage Act, under which no State can force another State to recognize the marriages of same-sex couples. In other words, each State has its own power to define marriage.

In the 8 years since DOMA was passed, it has never been successfully challenged. Although many have speculated that it may be unconstitutional, not a single Federal judge in this country has indicated that DOMA is unconstitutional or unlawful in any way, shape, or form. DOMA is still good law.

Our country now has a preemptive foreign policy. I do not think we should have a preemptive Constitution. This proposed amendment would preempt the possibility that the Defense of Marriage Act will be found unconstitutional. That is premature and therefore inappropriate for an amendment to our Constitution.

The concerns I have raised thus far are reason enough to oppose this constitutional amendment. However, I have not even discussed the text of the proposal itself.

This constitutional amendment States the following:

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.

These two sentences are contradictory. The first sentence states that marriage must be between a man and a woman. But the second sentence suggests that marriage other than between a man and a woman would be permissible as long as that recognition occurred through a statute, rather than constitutional means.

Which is it? Does this proposed constitutional amendment permit States to enact laws that would allow marriage to consist of the union of same-sex couples? If so, the first sentence must be modified. If not, the language in the second sentence must be more explicit to reflect the fact that this constitutional amendment would take away the right of States to define marriage within their borders.

Furthermore, the overall intent and scope of the first sentence also are unclear. At first, this language seems straightforward enough. However, there are at least two ambiguities regarding this sentence.

First, Representative MARILYN MUSGRAVE, the House sponsor of this proposed constitutional amendment has stated the following:

In summary, the first sentence of the FMA is designed to ensure that no governmental entity . . . at any level of government . . . shall have power to alter the definition of marriage so that it is other than a union of one man and one woman.

However, as Representative Bob Barr noted in his testimony before the Judiciary Committee, the scope of this first sentence is not limited to government actors. According to Representative Barr, this sentence "appears to bind everyone in the United States to one definition of marriage."

As a result, religions that marry couples of the same sex in religious ceremonies may be barred from doing so. This blurs the line between church and State and threatens the Free Exercise Clause of the First Amendment.

While I take the sponsor at her word that this is not her intention, the language again is ambiguous and must be clarified.

Secondly, it is uncertain whether arrangements such as civil unions and domestic partnerships could exist at all under this first sentence of the Federal Marriage Amendment.

Although Senator Allard and Representative Musgrave have stated that this sentence should not apply to civil unions or domestic partnerships, lawsuits have been brought in California and Pennsylvania that challenge domestic partnership laws based on the States' definition of marriage as being between a man and woman.

Dennis Archer, president of the American Bar Association, agrees that there is ambiguity and sent a letter to the Senate which States the following:

Despite the claims of the resolution's authors, it is unclear whether a State would be prohibited from passing laws permitting civil unions or domestic partnerships and providing State-conferred benefits to the couples involved.

Based on these lawsuits and the ABA's opinion, the language of this amendment must be more explicit regarding whether
civil unions and domestic partnerships could exist.

The second sentence also is full of ambiguity and undefined terms.

For example, what does the term "legal incidents thereof" entail?

I asked Professor Phyllis Bossin, who is Chair of the American Bar Association Family Law Section and who testified before the Judiciary Committee on behalf of the American Bar Association, what this phrase meant.

She said there were hundreds of such rights and responsibilities and provided a list of dozens of them, including the following: the right to visit in a hospital; the ability to authorize medical treatment; family health insurance; the ability to consent to organ donation; eligibility for life or disability insurance; interstate succession, which is when a spouse dies without a will; the right to adopt; domestic violence laws; the right to seek compensation for wrongful death; and the ability to file joint petitions to immigrate.

I ask unanimous consent that Professor Bossin's list of selected legal incidents of marriage be submitted for the RECORD.

There being no objection, the material was ordered to be printed in the RECORD, as follows:
BREAK IN TEXT

Mr. DURBIN. Under the Federal Marriage Amendment, none of these legal incidents could be provided by Federal or State courts. For example, Professor Bossin cited a California trial court ruling that the State constitution requires a partner in a same-sex union be allowed to sue for the wrongful death of her partner. This proposed constitutional amendment would preclude such a finding by a court.

This amendment also would have prohibited Vermont from establishing civil unions, because a court had ruled that the law to create such relationships was constitutionally required.

These examples go far beyond the scope of "marriage," but they do not tell even half of the story: Under the Federal Marriage Amendment, all State and Federal laws that provide any of these "legal incidents of marriage" could be struck down.

Senator Allard and others who support this amendment argue that it would allow State legislatures to provide the legal incidents of marriage through legislation, and that this amendment only constrains courts. However, a more critical analysis-which, again, should have been done at the committee level-demonstrates that this simply is not the case. For example, Professor Bossin has stated that the right to adopt is a legal incident of marriage. What if the Pennsylvania State legislature enacts a law to allow same-sex couples to adopt, and someone challenges the constitutionality of that law?

Under the second sentence of the proposed Federal Marriage Amendment, neither the State constitution nor Federal constitution shall be construed to require that the right to adopt-as a legal incident of marriage-be conferred upon a same-sex couple. Therefore, the court would have no grounds on which to uphold the constitutionality of this law, and the law would be struck down.

The possibility that even laws conferring the legal incidents of marriage could be invalidated raises serious questions about the intent and practical effects of the Federal Marriage Amendment.

This proposed constitutional amendment also undermines the democratic process regarding State constitutional amendments. In Massachusetts, the proposed State constitutional amendment that may be on the ballot in 2006 would define marriage as the union of one man and one woman, while simultaneously establishing civil unions for same-sex couples with "entirely the same benefits, protections, rights, privileges, and obligations that are afforded to persons [who are] married."

However, under the plain reading of this proposed Federal constitutional amendment, the Massachusetts State constitution cannot be construed to require the legal incidents of marriage to be conferred to same-sex couples. In other words, even if the people of Massachusetts voted to ratify this State constitutional amendment, the second part of that amendment-the part that establishes civil unions-would be void because of the Federal Marriage Amendment.

Furthermore, because of the first sentence of the Federal Marriage Amendment, under no circumstance could the people or the State legislature define marriage as other than between a man and a woman. How, then, does the Federal Marriage Amendment achieve its goal of advancing the spirit and principles of democracy.

Finally, I believe that words should not be added or deleted from our Constitution or from proposed constitutional amendments in a careless manner. Therefore, I would like to know why the original version of this proposal was modified by removing the reference to "groups." The first version of the Federal Marriage Amend-ment, S.J. Res. 26, stated that marital status or the legal incidents thereof would not be conferred upon "unmarried couples or groups."

The current version states that marriage or the legal incidents thereof shall not be conferred upon "any union other than the union of a man and a woman." It appears to me this change was made because we are still struggling in some parts of our Nation with the idea of polygamy. Professor Bossin agrees that the current version of the proposed constitutional amendment does not explicitly prohibit polygamy, because polygamists enter into the union of a man and a woman-they simply do it multiple times.

Was it in fact the intent of the sponsors to leave the door open for polygamy? If so, why should polygamous groups be treated differently from same-sex couples? If not, why was the reference to "groups" deleted from the original version?

In addition to expressing my serious procedural and substantive concerns, I would like to address some of the arguments in support of this proposed constitutional amendment.

First, I have heard many Senators argue that this constitutional amendment is necessary to provide the American people with a voice and to protect marriage from so-called activist judges. As I already have noted, this proposed constitutional amendment actually undermines democracy by removing the power of the people and their elected representatives to define marriage in their States, to provide for civil unions in their State constitutions, or even to enact legislation to provide the legal incidents of marriage.

I also disagree that democracy is pitted against so-called judicial activism. As University of Colorado constitutional law professor Richard Collins said, judicial activism is "more of an insult than a philosophy."

To argue that judicial activism is contrary to democracy is to suggest that a case like Brown v. Board of Education did not promote democracy in America. That was clearly an activist court, which took control of an issue that Congress and the President refused to address: discrimination in our public schools.

In Brown v. Board of Education, an activist Supreme Court said we are going to give equal opportunity to education across America. Doesn't that further democracy? When we celebrated the 50th anniversary of this decision earlier this year, did anyone argue that it didn't?

The same would be said of Griswold v. Connecticut, in which the Supreme Court said that families had the right to decide their own family planning and that the State of Connecticut could not dictate to them what family planning was allowed. It was a matter of privacy in family decisions. Was this an activist court in derogation of democracy that extended to these families and individuals their right to privacy?

In Loving v. Virginia, the Supreme Court said that a ban on interracial marriage was improper. Even though at the time, only 20 percent of the American people approved of such marriages, was that decision contrary to democracy or did it promote democracy?

Time and time again, judicial activism has promoted democracy. Of course, we must take care that the courts do not go too far. But to suggest that a constitutional amendment is necessary in this case simply because it was a court ruling-incidentally, by a court that consists of six Republican appointees and only one Democratic appointee-is controverted by the obvious legal precedent.

I also have heard many Senators argue that this constitutional amendment is necessary to safeguard the best environment for raising children. I agree that children raised by two parents are, in general, better off than children raised by a single parent. Many studies demonstrate this. But studies also demonstrate something else.

In 2002, the American Academy of Pediatrics-the largest pediatric organization in America-issued a report that Stated the following:

[T]he weight of evidence gathered during several decades using diverse samples and methodologies is persuasive in demonstrating that there is no systematic difference between gay and nongay parents in emotional health, parenting skills, and attitudes toward parenting. No data have pointed to any risk to children as a result of growing up in a family with one or more gay parents.

Dr. Ellen Perrin, a professor of pediatrics at Tufts-New England Medical Center, who is considered to be the Nation's foremost expert on children raised by same-sex couples, has studied same-sex couples and concluded the following:

What we know for sure is that children thrive better in families that include two loving, responsible, and committed parents. We also know that conscientious and nurturing adults, whether they are men or women, heterosexual or homosexual, can be excellent parents. We have a lot of research as well as clinical experience that provide evidence for this fact.

This evidence is based on our Nation's experience with gay adoption. Every State except Florida allows gay people to adopt.

Some States, including my home State of Illinois, allow same-sex couples to jointly petition for adoption. Many others allow for second parent adoptions, a legal procedure which allows a same-sex co-parent to adopt his or her partner's child. These States have recognized that same-sex couples can step into the lives of adopted children and provide loving and supportive families.

Under this proposed constitutional amendment, it would no longer be possible for State courts to interpret their constitutions to allow same-sex couples to adopt. Same-sex couples only would be allowed to adopt if explicitly permitted by State law-and as I have noted earlier, that State law could be challenged as unconstitutional and likely would be struck down.

Would that safeguard the best environment for these children? If this Senate is interested in the best environment for our children, we should fully fund No Child Left Behind, to provide all children with an educational opportunity and to fulfill the promise of Brown v. Board of Education.

We also should make college tuition more affordable, and we should provide families with affordable health care.

To conclude, I believe the definition of "traditional marriage" is an evolving one. One hundred and fifty years ago, "traditional marriage" in America did not include the ability of African American slaves to marry.

One hundred years ago, "traditional marriage" in some Western States did not include the ability of Asian Americans to marry. Just 40 years ago, "traditional marriage" in many States did not include the ability of African Americans to marry whites.

I understand that many supporters of this proposed amendment believe that the situation we face today is a fundamentally different one-that we must amend our Constitution to support the sanctity of marriage.

However, the sanctity of marriage is about the religious context of marriage, not the legality of it. We must be careful to separate the two.

Nothing in the Massachusetts Supreme Court ruling requires a church to conduct or to consecrate a same-sex union. On the other hand, if this proposed constitutional amendment were ratified, certain religious beliefs regarding the sanctity of marriage would be enshrined in our Constitution. This would go beyond the question of legality into sanctity, and I believe that we must maintain the bright line between the two that our Framers intended.

As one of my colleagues has said, "I support the sanctity of marriage, but I also support the sanctity of the Constitution." Therefore, I urge my colleagues to reject this motion to proceed to a constitutional amendment that even the Republican leadership concedes is not ready for prime time.

Why else would they object to our unanimous consent request to have a vote on this resolution, without amendments?

The Republican leadership instead would prefer that we make it up as we go along, with one, if not two, amendments here on the Senate floor-amendments that could have been offered in a Constitution Subcommittee markup or in a full committee markup, had those not both been bypassed.

We are being asked to tinker with the words of our Nation's Constitution on the Senate floor, without even the benefit of committee analysis on the impact of these amendments. Unfortunately, this is not the first time we have considered a constitutional amendment on the Senate floor that was a work in progress, with the sponsors trying to make changes in the midst of a floor debate.

During the 106th Congress, sponsors of the victims' rights amendment tried to make modifications to that proposal during the floor debate, and ultimately, the motion to proceed to that constitutional amendment was withdrawn. I believe that is the course we should follow here today. We either should vote on this resolution without amendments or withdraw this motion to proceed. If this motion is not withdrawn, I urge my colleagues to vote against it.