Proposing an Amendment to the Constitution Relating to Marriage

PROPOSING AN AMENDMENT TO THE CONSTITUTION RELATING TO MARRIAGE

Mr. CORNYN. First, Madam President, my remarks pertain to the issue of marriage. Of course, I have been here this morning while the distinguished Senator, the current occupant of the chair, the chairman of the Senate Judiciary Committee, comprehensively laid out the reasons why this is an important debate.

I have also heard Senator Allard from Colorado and Senator Smith from Oregon speak about this issue. I would like to associate myself with each of those comments. But I want to explain briefly my own reasons why I believe this is such an important issue.

First, I would like to respond to the comments made by the ranking member, the Senator from Vermont, the ranking member of the Judiciary Committee. This is something that the chairman of the Judiciary Committee has already touched on, but I think it is so important. We keep hearing the same argument over and over again, so we really need to hit this issue hard.

But I think it is so important.

It is amazing to me to hear the Senator from Vermont and others say we have no time to talk about the issue of marriage and the American family because there are more important issues we ought to be debating. The truth is, while there have been Members on this side of the aisle talking about this issue all morning long, there has been virtually dead silence on the other side of the aisle.

Then we hear comments that are made about, well, this really isn't that important, and there are more important issues for us to talk about: homeland security, the budget, appropriations, and the like.

But I concur with the comments made this morning by the present occupant of the chair, the chairman of the Senate Judiciary Committee, that there is no issue more important in this country today than the American family and preserving the traditional institution of marriage as the most basic building block in our society, one created for children in their best interests.

You know this common theme, that this issue is not important; it is not one that has been demonstrated by the lack of presence on the Senate floor by our colleagues on the other side of the aisle, or even the overt comments made about this not being an important issue. We have had numerous hearings in the Senate Judiciary Committee and the Subcommittee on the Constitution, which I am honored to chair, and other committees in the Senate. Essentially, we have been met with either overt hostility or, in many instances no-shows, where Senators have chosen to boycott a good-faith desire to have an honest discussion about this issue and the threat that has been posed to the traditional family.

I, for one, am shocked and amazed at the attitude. Unfortunately, it is the reality we confront today and which the American family confronts.

Of course, I have been concerned about this issue, as I think most Americans have been, for a long time. But I note that in January of 1999 when I served as Texas Attorney General, one of my responsibilities-it was one of the few attorney general offices that had this responsibility-was child support enforcement. It was my obligation, my duty, my privilege to enforce child support orders for about 1.2 million Texas children.

It is no secret to any of us that due to the growth of out-of-wedlock childbirths now-about one out of every three children born in America are born outside of marriage; unfortunately, a fact that we all bemoan but a real and present reality-that half of the marriages end in divorce; that the American family is in fragile condition.

That is one reason I was so concerned when on May 17, 2004, we saw an assault launched on the American family and the institution of marriage. But the truth is, we should have seen this coming. There were a few people who did, but most did not.

I worry that the American family will not be able to sustain itself against this continued attempt to marginalize the importance of traditional families and the importance of every child having a loving and supportive mother and father, which we all know as a matter of common sense, a matter of observation, and as a matter of social science is the optimal situation for a child to be raised and grow up in.

I would be the first to say that there are heroic parents-single parents and children living in other arrangements-that adults do a heroic job of raising children in other-than-traditional family households. I congratulate them, and we ought to do everything we can to support them in every way we can because we know the optimal is not always possible.

But that shouldn't cause us to shy away from or refuse to defend the importance of the traditional family unit as the optimal situation in which children are born and raised into productive adults and have a chance to live up to their God-given potential.

We know that, as a sad fact of social science, children who are raised in a less than optimal situation through no fault of their own are at higher risk, that they are at higher risk of a host of social ills. We hope and pray that they may overcome these higher risks. But we know, tragically, that too many cannot. We see the evidence of that with dropout students who fail to pursue their education because they simply drop out of school, children who become involved in drugs and other self-destructive activity, children engaged in premature sexual experimentation and pregnancy, and other problems that affect their ability to grow up as fully productive and contributing citizens.

So we should not shy away from this debate when it comes to talking about what is optimal, what is in the best interests of American children and American families.

I believe that fundamentally is what this debate is about.

Some people have asked me, Why is it that some seem to shy away from this debate? I will tell you this: I think part of the reason is that some people just prefer not to be called names or to have their motives cast in doubt. But I will tell you this:
I believe with all my heart that the people of this country believe in two fundamental propositions in addition to others.

No. 1, the American people believe in the essential dignity and worth of every human being.

At the same time, I think the American people overwhelmingly believe in the importance of traditional marriage and the traditional family as the bedrock institution of our society and in the best interests of children. I don't think there is any conflict there. I think you can believe in both at the same time.

This is not about phobias. This is not about a desire to hurt anyone. This is a discussion-an important discussion that we ought to have and we are going to have about the institution of the American family and traditional marriage as the optimal situation.

I fail to see how any one of us can remain neutral or on the sidelines when this debate is going forward. Indeed, we did not choose to engage in this debate at this time on this amendment. There is a difference between launching an attack and acting in self-defense. The American people know the difference. But I believe we must answer the call to action now on behalf of the American family.

It was on May 17, 2004, when the Massachusetts Supreme Court declared traditional marriage-remember these words because these are important-"a stain that must be eradicated."

The Supreme Court, four members, the majority of that court, called it invidious discrimination to limit marriage to persons
of the opposite sex, what we call traditional marriage.

They said "limiting traditional marriage between members of the opposite sex lacks any rational basis."

As has already been noted and as we observed on cable television and the nightly news, this attack on the family and on traditional marriage that occurred in Massachusetts was joined by lawless officials in San Francisco and elsewhere around the country.

Soon the American people saw same-sex unions occurring on our television screens, in our newspapers, and reported on the radio.

Tragically, it is not the adults who pay the price for the marginalization of marriage as our most basic societal institution, it is our children who pay and pay and pay some more. Social science confirms what common sense and simple observation dictate: When the institution of marriage is marginalized, children are at higher risk, as I mentioned before. In short, they are at higher risk for the sort of consequences that will follow them for the rest of their lives.

When the Massachusetts Supreme Court, following the decision of the U.S. Supreme Court, which I will discuss briefly in a minute, launched into this radical social experiment in redefining the institution of marriage, we have some glimpse of what that experiment may yield by what social scientists have been able to evaluate in Europe and elsewhere. We have seen what happens when government pretends this problem does not exist until it is too late. We cannot afford to look back years from now and say we stood idly by while the American family was marginalized into irrelevance.

How did we get here? How in the world did the Massachusetts Supreme Court, on May 17, 2004, decide that traditional marriage was a stain that must be eradicated, represented invidious discrimination, and had no rational basis? They did not dream it up on their own. The origins of this language and this rationale for that decision came from the case of Lawrence v. Texas. I have excerpted a segment of Justice Kennedy's opinion for the majority of the Court because this is the germ, this is the seed out of which this concept has grown and which now, as I have stated, threatens to jeopardize the American family, further marginalizing the American family and, indeed, the traditional institution of marriage.

Relying on an earlier decision in Planned Parenthood of Southeastern Pennsylvania v. Casey, the Court reaffirmed the substantive force of the liberty protected by the due process clause. For nonlawyers, they were relying on this earlier decision and said that they were reaffirming the basis of that decision here. The Court went on to say:

The Casey decision again confirmed that our laws and traditions afford constitutional protection to personal decisions relating to marriage, procreation, contraception, family relationships, child rearing, and education.

In this following sentence, stated in the same place where they talked about the liberty interests that protect marriage, they conclude by saying:

Persons in a homosexual relationship may seek autonomy for these purposes, just as heterosexual persons do.

As Justice Scalia noted in his dissent, it was this juxtaposition of marriage and this right of individual autonomy in one's relationships that extends not just to heterosexuals in marriage but also to homosexuals in their relationships that is the basis for the Court's decision here. Not surprisingly, that was the very case cited by the Massachusetts Supreme Court in the Goodridge case when they held that traditional marriage was a stain that must be eradicated, that it represents invidious discriminations to allow heterosexuals to enter into that relationship but not homosexuals, and said that limiting marriage to traditional marriage between persons of the opposite sex had no rational basis.

Of course, the American people have not had a chance to express their views on this issue. As was pointed out eloquently earlier, neither did the people of Massachusetts. As it turned out, when the people of Massachusetts had the chance to have their voice heard on this issue, they chose to overrule the decision of the Massachusetts Supreme Court. The problem is in Massachusetts a constitutional amendment takes two consecutive sessions of the legislature, and they cannot amend the constitution until 2006 in that State. In the meantime, as we all know, since May 17, clerks have been ordered to issue licenses for same-sex marriages, and this pending constitutional amendment of 2006 is too late to effectively let the people's voice be heard and control this debate.

We have seen what some have called "government by the judiciary." We believe in our fundamental constitutional documents. Our Constitution provides for government of the people, by the people, and for the people, not government of the judiciary, by the judiciary, and for the judiciary but government of the people, by the people, and for the people. When we see an overturning, in essence, of the Massachusetts Constitution, 224 years after it was written, by a radical redefinition of marriage by a majority on the Massachusetts Supreme Court, it amazes me some of our colleagues would expect us to stand on the sidelines, mute, and expect us to be mere spectators in what is perhaps one of the most important debates we could possibly be having in this body or anywhere else around this country, and that is the preservation of the American family and the preservation of traditional marriage as the most important stabilizing factor in our society in a relationship that is most important for the raising and nurturing of children.

Some have suggested that this is not a Federal issue, this is not something the U.S. Congress should have anything to do with. Some have said in good faith-I think naively so but in good faith-well, let Massachusetts deal with that; that does not affect us. As already has been pointed out, people have married in Massachusetts under Massachusetts law and moved to 46 different States. Indeed, there are a number of lawsuits-I think at last count roughly nine lawsuits, maybe more-where those persons, same-sex couples who married in Massachusetts, have moved to other States and filed lawsuits seeking to require those States to recognize the validity of those marriages even though the laws of those other States do not recognize same-sex marriage.

As was pointed out a little earlier, we should have seen this coming. It has been coming for quite some time. It really did not start with Lawrence v. Texas. Some of the most well-known legal scholars in the United States, such as Laurence Tribe, have been advocating this position all along. He concludes after Lawrence, as he did beforehand, that this was the death knell for traditional marriage in America. But he said, "You'd have to be tone deaf not to get the message from Lawrence that anything that invites people to give same-sex couples less than full respect is constitutionally suspect." That is what left-leaning liberal legal scholars have been saying for some time and what the Supreme Court embraced in Lawrence and now we have seen carried to the next step, the logical conclusion, by the Goodridge court in Massachusetts.

But I guess what causes me such disappointment at the absence of our colleagues on the other side of the aisle and of their statements-those who have come to the floor and those who have shown up in committee-is saying this is not an important issue, that there are more important issues.

This is not a partisan issue. The reason I say that is because in 1996 the Congress passed-indeed, the Senate passed, by 85 votes-the Defense of Marriage Act which, as a matter of Federal law, defines marriage as the union of one man and one woman.

Now what I fear is our colleagues who oppose this amendment, who voted for the Defense of Marriage Act-they understand the Defense of Marriage Act is under threat and that a constitutional challenge will be made to the Defense of Marriage Act based on this Lawrence rationale. Indeed, that has already occurred in the States of Utah, Florida, and Nebraska, a Federal constitutional challenge that says: Your laws that limit marriage to traditional marriage, a marriage between one man and one woman, now violate the Constitution, using the very rationale I described earlier in Lawrence, agreeing, perhaps, with Professor Tribe. We are told this is not important, this is not worthy of debate, and there are other things that are more important. I disagree. I think the American people, when this finally begins to sink in, will disagree as well.

Some people have asked me: Why is it there is not a greater popular uprising and outcry about this issue? Well, I remember when we saw people getting married in San Francisco, same-sex couples there, and in Massachusetts, there was sort of a blip on the radar screen. Polls showed that the American people, once they realized what was going on, disapproved of what they saw. But, of course, we are all busy raising families and going to work, and this perhaps has not been something that has been sustained in their consciousness and their awareness. But, indeed, this is an important issue and one that is
under attack.

Some have said, though: Why can't we let Massachusetts do its own thing? And why can't each State decide for itself what its policy will be? Well, we have seen, because of same-sex couples getting married in Massachusetts and moving to other States, that is not possible. Realistically that is not possible.

If you think about another aspect of what we call family law-let's say the law of adoption-if one State says you can adopt a child under certain circumstances, when that family moves to another State-when they move to Texas, Utah, or somewhere else-we recognize the validity of that adoption, of that family law decision.

What I believe is some of our colleagues, indeed some of the American people, are, No. 1, in shock at this radical transformation in our society's most basic institution. Secondly, after shock, people sometimes are in denial. They do not want to believe it. They do not want to think they are going to have to deal with it. And then, after a while, the reality begins to sink in that this is indeed something that needs to be addressed.

There are some who said: Well, if this is such a threat, why can't we wait until after the U.S. Supreme Court joins the Massachusetts Supreme Court in saying you cannot limit marriage to opposite-sex couples, based on this rationale and the logical conclusion of the language I have already described?

As you know, the U.S. Constitution has been amended 27 times. We have some history, some track record of how long it takes the process to go forward. It requires, of course, as you know, a two-thirds vote in the Congress. It requires ratification by three-quarters of the States. In other words, it takes a little time. Some amendments have been adopted and ratified in as short as 8 months, but typically they take a little bit longer.

So what people are saying-if they want us to wait until after the Federal courts declare traditional marriage unconstitutional, if they want us to wait until that time to raise this constitutional amendment-they are, I suggest to you, inviting the same sort of chaos we are seeing happening in Massachusetts. Because once same-sex marriages occur, if months and maybe years later the Constitution is amended to reinstate the status quo of traditional marriage, it may very well be too late.

So I will conclude, because I see the distinguished Senator from Alabama in the Chamber, who I know has been waiting to address this issue. This is an important issue. This is an issue that deserves serious debate by serious people. This is an issue that cannot be limited to one State. And this is an issue the American people deserve a right to be heard on through the amendment process.

I would say, in conclusion, there are some who say the U.S. Constitution is a sacred document and should not be amended. If the American people do not exercise their rights under Article V of the Constitution to amend the Constitution as they see fit-given that high bar, and given the deliberation that is required in order to meet that high standard-the only people who are going to amend the Constitution are judges-Federal, life-tenured judges who are accountable to no one.

I submit that is antidemocratic, it is contrary to the concept of self-government that is ensconced in our Constitution and was embraced by our Founding Fathers, and simply will not stand up under any close scrutiny. The whole concept that Federal judges ought to be the only ones to speak on what the laws are that govern us is antithetical to a constitution that
guarantees government of the people, by the people, and for the people.

Finally, I would say we have on this last chart a statement of intent by those who intend to pursue legal action across the country until they reach their ultimate goal:

We will not stop until we have [same-sex] marriage nationwide.

This was stated by a spokesperson for Lambda Legal, which is an organization that supports much of this concerted legal action across the country in State and Federal courts, the logical conclusion of which is the judicial mandate of same-sex marriage.

I look forward to the additional debate and the words offered by my colleagues on this subject. I hope those who have a different view will have the courage to come here and tell the American people why it is they think the preservation of the American family and the preservation of traditional marriage is unimportant. I think we can have a pretty good debate. I hope they do not choose, instead, to stay in their offices or at home and hide from this issue. This is simply too important to the kind of country America is and the kind of country we will become.

With that, Mr. President, I yield the floor.