Federal Marriage Amendment
FEDERAL MARRIAGE AMENDMENT-MOTION TO PROCEED
Mr. CORNYN. Mr. President, when I came to the Senate I learned a new aphorism, referring to the debates and sometimes repetitive arguments you tend to hear by Members of Congress. Someone told me: "Well, everything has been said; it is just not that everyone has had an opportunity to say it yet."
Sometimes I wonder if that reflects the fact when we are debating important issues like this, people aren't listening or maybe they made up their minds and they are not open to the facts or persuasion or perhaps some preconceived notion they have about the motivation for legislation is flat wrong, but they have already locked in, they have already gone public, they have taken a position and then it becomes two contending adversaries across some demilitarized zone and we try to fight it out the best we can and then count the votes.
But I think two things are most important about this debate. Despite some of the repetition of erroneous arguments, we have had an important debate. I think two things will come out of this that have been very positive, regardless of what happens in the vote today.
First, we have had a debate on the importance of traditional marriage, the importance of the American family and steps we should be taking in order to preserve the traditional marriage and American family and to work in the best interests of children. That is a debate that has been long overdue. I am told it has been perhaps at least 8 years, since the passage of the Defense of Marriage Act, since this body has even talked about the most basic building block in our society. I think that has been very positive.
I also think it has been positive that we have been able to direct the American people's attention to the erosion of our most fundamental institutions by judges who seek to enforce their personal political agendas under the guise of interpreting the Constitution.
Now I come to the Senate and hear some of my colleagues, including the Senator from Massachusetts, say this is all part of a right-wing conspiracy, or words to that effect. Surely, when the Defense of Marriage Act passed in 1996 by a vote of 85
Senators, an overwhelming bipartisan consensus which defined marriage as a union of a man and a woman, that was not the product of a vast right-wing conspiracy. Indeed, that was the Senate and Congress functioning at its best, coming together to protect the fundamental institution, one we have fought hard and should continue to fight hard to preserve and protect against all challenges.
We have heard and I have read in the press that this side of the aisle has been castigated for not accepting the Democratic leader's offer to go to an up-or-down vote on this amendment. The problem is, of course, that they only tell half of the offer. The other part of the offer was banning consideration of any further amendments that might be offered in the Senate-in other words, constraining the debate, stifling the debate, and limiting the right of any Senator on any piece of legislation, whether it is a constitutional amendment or an ordinary bill, to offer alternatives for the body to consider as a means of advancing the debate.
My understanding is the majority leader countered by saying, okay, we will go to an up-or-down vote, but we are not going to limit our right to offer amendments. The amendment most talked about is the so-called Smith amendment, which is, lo and behold, the first sentence of the amendment offered by Senator Allard hardly a surprise to anybody-which merely defines marriage as a union between one man and one woman. Our colleagues on the other side of the aisle were apparently afraid to allow the Senate to consider alternatives as a way of advancing the debate because they were afraid an alternative, perhaps along the lines of Senator Smith's amendment, the one-sentence amendment, would garner more votes. I am advised it would garner perhaps as many as ten new votes.
Mr. CARPER. Will the Senator yield?
Mr. CORNYN. I will gladly yield after I complete my remarks.
It is a bogus offer. It is a bogus argument that somehow by refusing their attempt to stifle the debate and stifle the amendment
process that this has somehow become nothing but bare partisan politics.
There are those who would raise their voices, those who would call Members names, Members who believe it is important to
defend the traditional institution of marriage, in hopes we would lose the courage of our convictions. In hopes that we would simply be silent while we see the ongoing march of litigation as part of a national strategy to undermine the traditional institution of marriage that we know is the most important stabilizing influence in our society and one that functions in the best interests of our children. But we are not going to lose the courage of our convictions. We are not doing to sit on the sidelines. We are not going to be quiet. We are not going to give up. In fact, regardless of how this vote turns out at noon today, I know of no important piece of legislation considered by Congress that has been successful the first time it has been introduced into the Senate.
What I have learned is probably the most important characteristic of a Member of the Senate is someone who is willing to persevere over weeks and months and even years until ultimately they are able to see the fruit of their labor and the legislation they have sponsored be accepted by the Senate. It is part of a building process, it is part of an awareness process that is very important.
Part of the awareness process is also to knock down some of the unfounded statements that are made during the course of the debate. It was, I believe, the Senator from Massachusetts who said that no court has called the Defense of Marriage Act into question. Perhaps he was not able to listen yesterday when I read a paragraph out of the Massachusetts Supreme Court decision in Goodridge, relying on the case of Lawrence v. Texas, that plainly calls the constitutionality of the Federal Defense of Marriage Act into question. As a matter of fact, you cannot really believe, as the court did, that the marriage laws of Massachusetts were unconstitutional and believe that the Defense of Marriage Act is constitutional as well.
To be fair, the unconstitutionality of the Defense of Marriage Act is an argument the Senator from Massachusetts made back in 1996 when he voted against the Defense of Marriage Act, as did the other Senator from Massachusetts, Senator Kerry, who voted against the Defense of Marriage Act then and who stated that if passed, it would be unconstitutional. This has been a consistent theme, although they have some of their facts wrong. I hope that helps clarify.
The question before the Senate today is simple: Do you believe traditional marriage is important enough that it deserves full legal protection? As I said, an overwhelming bipartisan consensus in 1996 voted that it did by passing that statute. President Clinton said as much by signing that legislation into law in 1996.
This debate is important. It is long overdue because we have, in essence, a stealth operation going on today. It is an effort where a handful of courts around the country, as well as those who have engaged in a nationwide litigation strategy, are basically operating off the radar screen of most Americans. The only time the American people know very much about it is when a blockbuster decision is handed down, such as the Massachusetts Supreme Court in May of this year, or when they happen to see local officials engaged in civil disobedience, for example, in San Francisco, issuing same-sex marriage licenses and same-sex marriages in that location.
This is not, despite the wishes of some of the people who are opposed to this amendment, something that can be solved at the State level. I believe in the principle of federalism. I believe people at the local level, closest to the problem, are best prepared and are in the best position to try to address that problem. But we have seen how, with one State recognizing same-sex marriage, people have moved now, we know, to 46 different States and how there are lawsuits pending in at least 10 of those States-and no one knows how many there will be in the future-seeking to compel those States, in violation of their current State law, to recognize those same-sex marriages.
Some people have said, don't worry. The Senator from New York, Senator Clinton said, don't worry, we do not have to amend right now, we can wait until after the Federal Defense of Marriage Act is held unconstitutional. In fact, she said no one had challenged it, and I have attempted to clarify that by my earlier statements.
In the interest of completeness, let me ask unanimous consent to have printed in the RECORD the cover sheet from a lengthy petition in both cases, one filed in the Western District of Washington, in re Lee Kandu and Ann C. Kandu, and another complaint, Sullivan v. Bush, filed in Federal court, the Southern District of Florida, Miami Division, seeking to hold the Federal Defense of Marriage Act unconstitutional as a matter of Federal law.
There being no objection, the material was ordered to be printed in the RECORD, as follows:
UNITED STATES BANKRUPTCY COURT FOR THE WESTERN DISTRICT OF WASHINGTON
In re Lee Kandu and Ann C. Kandu, Debtors; No. 03-51312; reply of petitioner Kandu to show cause order.
Petitioner Lee Kandu submits this reply to the United States Trustee's Response to the order to show cause why the joint
petition should not be dismissed. As explained below, the government has failed to respond directly to the legal issues
presented by this case-issues never before considered by this or (to the best of petitioner's knowledge) any other court as to
the proper construction and constitutionality of the federal Defense of Marriage Act ("DOMA"). To the extent that the
government does touch on the issues presented by this case, the government's arguments are based on outdated case law
and lack merit.
ARGUMENT
I. Applying DOMA to Section 302 of the Bankruptcy Code Would Violate the Tenth Amendment
It is well settled that the Tenth Amendment prohibits Congress from usurping the powers not delegated to it by the Constitution. It is also well settled that "the regulation of domestic relations has been left with the States and not given to the national authority." Williams v. North . . .
UNITED STATES DISTRICT COURT, SOUTHERN DISTRICT OF FLORIDA, MIAMI DIVISION
Civil Action No. 04-21118: F.D.R. "Fluffy" Sullivan and Pedro "Rock" Barrios; Cynthia Pasco and Erika Van der Dijas; Michael Solis and Jesus M. Carabeo; and Jason Hay-Southwell and William Hay-Southwell, Plaintiffs, v. John Ellis Bush, in his official capacity as Governor of the State of Florida, and Charles J. Crist, Jr., in his official capacity as Attorney General of the State of Florida; and Harvey Ruvin, in his official capacity as Clerk of the Circuit and County Courts, Miami-Dade County, Florida; and John Ashcroft, in his official capacity as Attorney General of the United States, Defendants.
COMPLAINT FOR DECLARATORY JUDGMENT
CLAIM OF UNCONSTITUTIONALITY
1. This Court has jurisdiction pursuant to 28 U.S. Code 1331. This is a civil action arising under the Constitution and laws of the United States presenting a substantial Federal question.
2. Venue is properly in the Southern District of Florida, Miami Division, pursuant to 23 United States Code 1391. All of the Defendants reside in Florida and all have offices for the conduct of official business in Miami-Dade County, Florida: also a substantial part of . . .
Mr. CORNYN. Some have said there are more important issues to debate. Certainly, the Senate has debated and I hope and trust we have passed legislation that has done a lot of good on behalf of the people who sent us here. If we haven't, we have not been doing our job. I believe we have a record we can be proud of when it comes to defending America and the war on terrorism, when it comes to rejuvenating our economy to see it come roaring back the way it has, indeed, providing a prescription drug benefit to senior citizens.
We have done a lot of which we can be very proud. And for someone to stand up and say that preservation of traditional marriage is not important enough for us to talk about, to me, is breathtaking in its audacity and its sense of obliviousness to what the concerns are of moms and dads and families all across this country.
We know for years, for a variety of reasons, the American family has been increasingly marginalized. We know we have a crisis in this country of too many children being born outside of wedlock, too many marriages ending in divorce, and too many children being raised in less than optimal circumstances, putting them at risk for a whole host of social ills for which ultimately the American taxpayer has to pick up the tab. And I have not even mentioned the human tragedy involved, as some child fails to live up to their God-given potential.
I do not believe that we can remain neutral or to remain merely spectators in this further marginalization of the American family.
We cannot allow for a process that puts more and more children at risk through a radical social experiment. And if we want to look for the only evidence that we know is available, we can look to Scandinavia, where less people get married, more children are born out of wedlock, and more children become, thereby, the responsibility of the State.
It is not good for them, it is not good for us, and we should not, without letting the American people have a voice in the process, merely sit back while judges radically redefine our most basic societal institution.
Now, let me click through a number of other arguments that have been made.
I know Senator Durbin has said we should not talk about constitutional amendments during an election year. My question to him is: Isn't Congress still in session? Aren't the American taxpayers still paying us to do our job? As a matter of fact, six times Congress has successfully proposed amendments in an election year.
Some have claimed that the text that is before us-Senator Allard's amendment-prevents States from enacting civil unions if they should wish to do so through their elected representatives. Yet the Democrats' own legal expert, Professor Cass Sunstein, answered this very question: Of course not. This amendment does not prevent the States from enacting civil unions should they decide to do so.
Some have even gone so far as to claim that the Allard text would regulate private corporations, churches, and other private organizations. As the Presiding Officer well knows, and as virtually everybody in this body should know, the Constitution regulates State actors, not private actors. These arguments do not hold water. But they do not have to work for our opponents on this issue to say them because that is not the point. The point is, if you cannot convince them, confuse them. Their aim is to distract the American people away from the real question, which is, as I said at the outset: Do you believe that traditional marriage is important enough that it deserves full protection under law?
I would ask the opponents of this amendment, if you believe in traditional marriage-as some of you but certainly not all of you have said you do-but you do not support this amendment, what is your plan? What do you think the American people should do when courts run red lights and act in excess of their authority by legislating from the bench, redefining our most basic institutions? What are you going to do to stand up on behalf of the American family to prevent the increasing marginalization of the American family?
But I am confused by the arguments that are made by some on the other side of this issue. When some of their very own leaders say the Defense of Marriage Act is unconstitutional-such as Senator Kennedy, Senator Kerry-when your very own leaders say, as the senior Senator from Massachusetts did yesterday, that traditional marriage is a "stain on our laws"-repeating the language of the Massachusetts Supreme Court in saying that traditional marriage is a "stain that must be eradicated" because it, in essence, represented discrimination-what do the opponents of this amendment think we should do? Do you want the courts to strike down traditional marriage? What you are saying is that you do not want the American people to know about it, much less have a voice in correcting this radical social experiment.
Of course, everyone has a right to file lawsuits. But the American people have rights, too, rights preserved by Article V of the U.S. Constitution, which provides a process of amendment, particularly when courts engage in a radical redefinition of our most basic institution under the guise of interpreting the Constitution. Indeed, the only way the American people have of responding is through a constitutional amendment. So we have no choice but to offer this amendment by way of response.
I think no one should be fooled into thinking that on this side of the aisle we are afraid of a full and fair debate and a vote on the various proposals that may come to the floor. But, indeed, under the offer made by the Democratic leader last Friday, it would have cut off any amendments, would have stifled a full debate, which I think has been on the whole very positive.
I appreciate my colleague for letting me finish my prepared remarks. I do not know if he still has a question, but I would be glad to respond if he does.
Mr. CARPER. I do. I thank my colleague for yielding. There is a question I want to ask. But let my just say, first of all, I think you know how much I respect you and the high regard I have for you and how much I enjoy working with you. We agree on a lot of things. And there are one or two things we do not agree on, and that is, I think, to be expected.
The issue that you raised early in your remarks is one I want to come back to; and that is, the question of whether we should in some way have an up-or-down vote on the amendment that is before us, or if there should be opportunities for other colleagues, Republicans and Democrats, to offer their own amendments to this underlying amendment.
I think the concern for our side is that we are mindful of the possibility of this not being just a debate, an opportunity to address whether there should be a constitutional amendment as marriage being between a man and a woman, but an opportunity to consider other issues of a constitutional nature.
There are people on our side interested in amendments that deal with campaign finance, in restricting money spent on campaigns. That is one example.
As a Member of the House, when I served with Senator Santorum over there, we were great proponents of something called a
balanced budget amendment to the Constitution, not one that mandated a balanced budget, but one that said: Shouldn't the President be required to propose a balanced budget? And shouldn't we make it a little more difficult for the Congress to unbalance that budget?
There are a number of constitutional amendments that are floating out there on your side and on our side. Here is my question.
Mr. CORNYN. Mr. President, I would be glad to respond to my colleague's question, but I first ask unanimous consent that the time engaged in question and answer be charged to the other side, in fairness.
The PRESIDING OFFICER. Is there objection?
Mr. CARPER. I will not object.
Mr. CORNYN. I thank the Senator.
The PRESIDING OFFICER. Without objection, it is so ordered.
Mr. CARPER. I just ask that the response come out of your time.
Mr. CORNYN. I would be glad to respond to that because I think that is an important issue. No one has suggested we should
not make this discussion about preserving traditional marriage. I would say there was no attempt to try to limit any debate, any amendments that might be offered-for example, the single-sentence amendment, which is the first sentence of Senator Allard's amendment-to amendments that are germane to the preservation of traditional marriage.
So I must say that while I respect my colleague-and he knows that, and, as he said, there are many things we agree on-I simply disagree that our refusal to take the offer that would allow no amendments, whether or not they are germane to the issue of traditional marriage, in no way opens this matter up to non-germane or extraneous amendments.
I would be pleased-at least speaking personally; of course, any Senator could lodge an objection to the unanimous consent request-for us to stay on the subject because I think this has been a very helpful debate.
I would also ask unanimous consent that a letter to Ms. Margaret A. Gallagher dated July 11, 2004, and a letter from the Liberty Counsel dated July 10, 2004, be printed into the RECORD.
There being no objection, the material was ordered to be printed in the RECORD, as follows:
THE BECKET FUND
FOR RELIGIOUS LIBERTY,
Washington, DC, July 11, 2004.
Ms. MARGARET A. GALLAGHER,
President, Institute for Marriage and Public Policy, Washington, DC.
DEAR MS. GALLAGHER: Your Institute and others have asked us to examine whether the proposed Federal Marriage Amendment ("FMA") would violate the principle of religious liberty. In particular, you have first asked whether the FMA would reach private action in light of the fact that the FMA contains no express provision limiting its reach to state action only. Second, you have asked us to consider what the practical consequences for religious liberty would be should the FMA become law. That is, you have asked us whether it will trigger a "witch hunt" against religious organizations and individuals that choose to conduct or participate in religious ceremonies which they refer to as weddings.
You have provided us with an opinion letter by David Remes (the "Remes Letter") which answers both questions in the affirmative. Our strong belief is that the Remes Letter is mistaken on both counts. The FMA would not reach private action, and the parade of horribles it posits is unlikely in the extreme.1
At the outset we wish to emphasize that the Becket Fund is a nonpartisan, interfaith, public-interest law firm that protects the free expression of all religious traditions. We have represented religious congregations that have come down on both sides of the debate over the FMA. We have for example represented Unitarians, who do not support the FMA, and more conservative congregations who do. We have represented a wide assortment of faiths, including a variety of Jewish and Christian congregations, Buddhists, Muslims, Native Americans, Sikhs, Hindus, and Zoroastrians, whose views on the FMA are unknown to us. We have also represented religious congregations who take opposing positions on the moral issue of homosexual behavior itself. We have on the one hand represented congregations that condemn not only gay marriage but also gay sex, and on the other, at least one congregation (the Come As You Are Fellowship in Reidsville, Georgia) that openly welcomes gays. Had we concluded that the FMA would violate the principle of religious liberty we would have been at the forefront of the effort against it. We have, however, concluded otherwise.
THE FEDERAL MARRIAGE AMENDMENT WILL NOT REACH PRIVATE ACTION
The Remes Letter argues that the FMA "by its own terms" reaches private action. The Remes Letter concludes this simply from the fact that the FMA does not state otherwise. But more than 100 years ago the Supreme Court settled the point that constitutional provisions that do not facially restrict themselves to state action cannot be assumed to reach private action. In United States v. Cruikshank, 92 U.S. 542 (1875), the United States attempted to prosecute one group of private citizens for "banding and conspiring" together to deprive another group of citizens of, among other things, the "right to keep and bear arms for a lawful purpose." Id., 92 U.S. at 545. The government's indictment was based on the argument made by the Remes Letter-because the Second Amendment did not limit itself facially to state action, but simply stated that "[a] well regulated Militia being necessary to the security of a free State, the right of the people to keep and bear arms shall not be infringed[,]" private actors could be indicted for attempting to deprive others of those rights. U.S. CONST. amend. II; Cruikshank at 548. The Supreme Court rejected that reasoning out of hand: "The second amendment declares that it shall not be infringed; but this, as has been seen, means no more than that it shall not be infringed by Congress. This is one of the amendments that has no other effect than to restrict the powers of the national government, leaving the people to look [to the state police power] for their protection against any violation by their fellow-citizens of the rights it recognizes."-United States v. Cruikshank, 92 U.S. at 553. Had the Court ruled otherwise and applied to the Second Amendment the strained interpretation that the Remes Letter applies to the FMA, much mischief would have resulted. Churches, synagogues, and mosques for example, could not prevent persons from wearing firearms on the premises without thereby violating the Constitution.
The Remes Letter theory, if true, would lead to equally strange interpretations of other Amendments. The Third Amendment, which prohibits the quartering of troops in private homes during time of peace without the consent of the owner-but which does not explicitly limit its scope to state action-would make it unconstitutional for a tenant to sublease his apartment to a military officer whom his landlord found objectionable. Every petty theft would constitute a violation of the Fourth Amendment because that Amendment does not explicitly limit its condemnation of unreasonable seizures to state actors. Excessive spanking would arguably violate not only child abuse laws but the constitution itself, because it might be construed to be cruel and unusual punishment under the Eighth Amendment, which also does not expressly limit its scope to state action. None of these examples are the law, precisely because it has long been settled that constitutional provisions that do not expressly limit themselves to state action nevertheless do not ordinarily reach private action.2
The sole exception-and curiously the only example the Remes Letter cites-is the Thirteenth Amendment, which bans slavery. To remove that evil root and branch, it was necessary to take the extraordinary step of a constitutional provision that reached both public and private action. See, e.g., United States v. Nelson, 277 F.3d 164, 175 (2d. Cir. 2002) (history shows that unlike other amendments, the Thirteenth Amendment "eliminates slavery and involuntary servitude generally, and without any reference to the source of the imposition of slavery or servitude" and therefore "reaches purely private conduct." (emphasis added)).3
By contrast, to achieve the FMA's objective, it is not necessary to reach private action. The FMA is occasioned by the interplay among state court decisions requiring that civil marriage be available to same-sex couples and the Full Faith and Credit Clause of the federal constitution. That Clause requires in general that civil marriages performed in one state be recognized in all other states. Thus, without the FMA, the argument goes, same-sex couples civilly married in Massachusetts must be considered civilly married in Alaska as well. However, the Full Faith and Credit Clause simply does not apply to purely religious ceremonies. Unlike uprooting slavery, therefore, preventing civil same-sex marriage from spreading via the Full Faith and Credit Clause does not require reaching private action. The general rule of the Second, Third, Fourth, and Eighth Amendments therefore applies, and not the exception of the Thirteenth.
Put differently, the historical context of the FMA informs its construction, just as the historical context of the adoption of the Bill of Rights informs construction of the Second, Third, Fourth, and Eighth Amendments, and the Civil War and Reconstruction provide the historical context that informs construction of the Thirteenth Amendment. Indeed, the FMA refers in its second sentence to state and federal constitutions-an unmistakable allusion to the actions of the Massachusetts Supreme Judicial Court in Goodridge v. Department of Public Health, 798 N.E.2d 941 (Mass. 2003) and other courts which have engendered the confusion to which the FMA is addressed.
In sum, it strikes us as past fanciful that courts construing the FMA would abandon the general rule adhered to in the Second,
Third, Fourth and Eighth Amendments, and grasp at the exception of the Thirteenth. The FMA thus causes us no anxiety for the religious liberty of those of our clients who might wish to conduct ceremonies for gay couples.
THE FMA WILL PROTECT RELIGIOUS LIBERTY MORE THAN IT WILL THREATEN IT
We next examine the Remes Letter's suggestion that should the FMA become law, it would occasion a witch hunt against those congregations and individuals who might seek to hold or participate in religious ceremonies for gay couples. The short answer to this fear is that the FMA does nothing but restore the status quo that has until very recently obtained in all 50 states since the Founding. We are aware of no such witch hunt ever being conducted against Unitarians or other groups who support same-sex marriage, whose tax exemptions seem to us as secure today as they ever have been. In those instances (overlooked by the Remes Letter) where same-sex marriage ceremonies have become the subject of litigation, the prosecutors have been clear that the crucial distinction lies between a purely religious ceremony, which the law will not disturb, and those ceremonies that purport to invoke state law and confer state benefits ("By the authority vested in me . . . ."), which would be illegal. See Thomas Crampton, Two Ministers are Charged in Gay Nuptials, N.Y. Times, March 16, 2004, at B1 (charges based on fact that ministers "have publicly proclaimed their intent to perform civil marriages under the authority vested in them by New York state law, rather than performing purely religious ceremonies.") 4 That seems to us to be the appropriate line to draw.
By contrast, in the short time since the Massachusetts Supreme Judicial Court handed down Goodridge, ordering gay marriage in the Commonwealth, a large number of serious questions have emerged about the rights of religious organizations who are conscientious objectors to that ruling. For example, Catholic colleges and universities there have started examining whether the schools must now provide married student housing to legally married gay couples.5 Similarly, religious employers that provide health and retirement benefits to the spouses of married employees may risk liability for withholding those benefits from same-sex spouses.
On top of these liability risks, resisting churches are more likely to face selective exclusion from public facilities, public funding streams, and other government benefits. The Boy Scouts, whose right to exclude openly gay scouts from leadership was confirmed in Boy Scouts of America v. Dale, 530 U.S. 640 (2000), have been the target of state and local governments who have sought to exclude the Scouts from public benefits they have long enjoyed. Throughout Connecticut, for example, the Boy Scouts were denied participation in the state's payroll deduction charitable giving program. See Boy Scouts v. Wyman, 335 F.3d 80 (2d Cir. 2003). Similarly, the New York City Council recently passed a law to exclude any contractor from doing more than $100,000 worth of business with the City, if the contractor refuses to extend health benefits to same-sex domestic partners. As a result of their religious convictions, groups like the Salvation Army-which has provided the City with millions of dollars in contract services for the needy-will be excluded from participation in government contracts. Such sanctions can only be expected to increase under a regime of same-sex marriage.
Moreover, the Goodridge decision is having an impact on individuals as well. One Massachusetts Justice of the Peace has already resigned, because she could not perform same-sex marriages in good conscience and Massachusetts refuses to provide an opt-out for conscientious objectors. Thus we are concerned that, whatever religious liberty problems there might be at the margins should the FMA become law, there will be far more problems if it does not.
CONCLUSION
For the reasons set forth above, it is our opinion that the FMA would not reach private action and would sufficiently protect religious liberty from unwarranted state intrusion.
Very truly yours,
KEVIN J. HASSON,
Chairman.
END NOTES
1 The Remes Letter raises an assortment of other objections to the FMA that are beyond the scope of this letter.
2 See, e.g., Katz v. United States, 389 U.S. 347, 350 n.5 (1967) ("The Third Amendment's prohibition against the unconsented peacetime quartering of soldiers protects another aspect of privacy from governmental intrusion." (emphasis added)); Terry v. Ohio, 392 U.S. 1, 9 (1968) ("wherever an individual may harbor a reasonable expectation of privacy, he is entitled to be free from unreasonable governmental intrusion" (emphasis added)); Ingraham v. Wright, 430 U.S. 651, 664 (1977) (Eighth Amendment designed "to limit the power of those entrusted with the criminal-law function of government" (emphasis added)).
3 The same was true of Prohibition, enacted by the Eighteenth Amendment, until it was repealed by the Twenty-first Amendment.
4 The case the Remes Letter does cite is idiosyncratic. Shahar v. Bowers, 114 F.3d 1097 (11th Cir. 1997) involved a lawyer recruited to join the office of Georgia Attorney General Michael J. Bowers (of Bowers v. Hardwick fame) who publicly championed her lesbian relationship at a time that sodomy was still illegal in Georgia. In its essence this was not a case about religious ceremony, so much as it was a case about demonstrated poor judgment. Id. at 1106, 1110. The outcome in Shahar would in any event have not been affected by the FMA becoming law.
5Rhonda Stewart, "Catholic Schools Studying Gay Unions," The Boston Globe (May 16, 2004).
LIBERTY COUNSEL,
Orlando, FL, July 10, 2004.
THE FEDERAL MARRIAGE AMENDMENT PRESERVES MARRIAGE AS THE UNION OF ONE MAN AND ONE WOMAN AND IS CONSISTENT WITH CONSTITUTIONAL JURISPRUDENCE AND FEDERALISM
We write this letter on behalf of a broad coalition of policy, religious and legal organizations and individuals to address several issues raised in a June 24, 2004 Covington & Burling memorandum (the "Covington Memo"). When read in conjunction with a July 2, 2004 letter we prepared concerning the legal attacks being waged against marriage in the courtrooms, it becomes clear that the federal marriage amendment must pass.1
In an effort to provide a ready reference to the arguments raised in the Covington Memo, we will address each of their
arguments in order. Contrary to the conclusions reached in the Covington Memo, the Federal Marriage Amendment ("FMA") preserves marriage as the union of one man and one woman in a way that is consistent with constitutional jurisprudence and federalism. Accordingly, in the first section of this letter, we rebut the argument that "The FMA is Ambiguous and Self-Contradictory." The second section exposes the intellectual dishonesty in the argument that "The FMA Would Threaten Private
Recognition of Marriage of Same-Sex Couples, Even By Religious Bodies." The third and fourth sections reveal the analytical error in the arguments that "The FMA Displaces Democratic Decision-making" and the "The FMA is Inconsistent with Principles of Federalism." The fifth section addresses the argument that "The FMA Would Constrain All Three Branches of Government." The final section discusses the current legal battles taking place, which undermines the argument, that "The FMA Would Precipitate Continuing Struggle."
I. THE TWO SENTENCES IN THE CURRENT FMA ARE CONSISTENT
The two sentences in the current FMA are consistent with each other. The current FMA provides that "Marriage in the United States shall consist only of the union of a man and a woman. Neither this Constitution, nor the constitution of any State, shall be construed to require that marriage or the legal incidents thereof be conferred upon any union other than the union of a man and a woman."
The first sentence is a broad declaration that marriage throughout the country is limited to a union of one man and one woman. It also acts as a broad prohibition on conferring the legal status of marriage on any relationship other than that of a man and a woman. The second sentence reinforces the first sentence. It reinforces the first by expressly stating that neither the U.S. Constitution nor a state constitution may be construed to require same-sex marriage. The decision in Goodridge v. Department of Health, 440 Mass:. 309, 798 N.E.2d 941 (Mass. 2003), exemplifies the necessity of that portion of the second sentence.
In Goodridge, the Massachusetts Supreme Judicial Court ("SJC") stated that "[t]he everyday meaning of 'marriage' is 'the legal union of a man and woman as husband and wife,' and the plaintiffs do not argue that the term 'marriage' has ever had a different meaning under Massachusetts law." Id. at 319.2 However, the SJC reformulated "marriage" to mean the "union of two persons." Significantly, under the Massachusetts constitution, the SJC was without authority to redefine the indisputable understanding of marriage from the "union of a man and a woman" to the "union of two persons." See Opinion of the Justices to the Senate, 324 Mass. 746, 85 N.E.2d 761 (1949) (unambiguous words in the constitution must be interpreted according to their meaning at the time they were added to the constitution). Nevertheless, four of the seven judges held that it would "construe civil marriage to mean the voluntary union of two persons as spouses, to the exclusion of marriage." Goodridge, 440 Mass. at 343.3
The second sentence of FMA makes clear, for those looking for wiggle room in the language of the first sentence, that the FMA prohibits a repeat of the Goodridge decision. While the Covington Memo describes the first part of the second sentence as inconsistent with the first sentence, the level of judicial activism currently taking place across the country mandates a clear expression that marriage at the state and federal level is limited to the union of a man and a woman. The second sentence closes the door to any argument that the first sentence applies only to rights arising under the federal constitution, and therefore allows courts and legislatures to permit same-sex marriage under their state constitutions. This is particularly necessary given the fact that in the state marriage cases, those challenging the marriage laws as unconstitutional rely heavily on the argument that state constitutions grant broader individual rights than the federal constitution. See Covington Memo at 5 ("state courts are absolutely free to interpret state constitutional provisions to afford greater protections to individual rights than do similar provisions of the United states Constitution"). Whether or not a state constitution affords broader individual rights, the FMA reserves marriage in all fifty states as the union of one man and one woman.
The second sentence also prohibits a repeat the Baker v. State, 744 A.2d 864 (Vt. 1999) decision by the Vermont Supreme Court. In that case, the court construed the state constitution to require the state to grant the same legal incidents of marriage to same-sex couples as are granted to marriages entered into by a man and a woman. After passage of the FMA, no court could render such a decision.4 The two sentences of the FMA accomplish the same purpose-to reserve marriage for a union of a man and a woman. The two sentences are consistent.
II. THE FMA DOES NOT REACH PRIVATE CONDUCT NOR DOES IT THREATEN PRIVATE RECOGNITION OF SAME-SEX RELATIONSHIPS
The FMA does not reach private action nor does it prohibit private recognition of same-sex relationships. Marriage is a unique institution with a distinct definition and with distinct requirements for entry into the relationship. Two individuals may not simply declare themselves married and thus obtain the legal status of marriage. In all fifty states, a marriage may only be entered into with state sanction and approval.
A private religious group may conduct a religious ceremony to "unite" two persons of the same-sex, but such a union is not a marriage for legal purposes. Marriage is a public legal status. See Maynard v. Hill, 125 U.S. 190, 205 (1888) (marriage is the "most important union in life, having more to do with morals and civilization of a people than any other institution" and its status is conferred by the legislature); see also Loving v. Virginia, 388 U.S. 1, 7 (1967) (stating, "[M]arriage is a social relation subject to the State's police power.").
The Covington Memo argues that the FMA would be interpreted as the Thirteenth Amendment (regarding slavery) has been interpreted to prohibit private conduct. The Thirteenth Amendment is distinguishable from the FMA. Unlike marriage slavery does not require a state sanction-it is a purely private relationship. Because slavery may exist without state sanction or recognition, the Thirteenth Amendment applies to private conduct. Marriage, in contrast, cannot exist without government sanction. The FMA does not reach private conduct, nor would it regulate private ceremonies. A ceremony conducted by a private group is merely ceremonial or symbolic, not legal. The Second, Fourth, Fifth and Eighth Amendments are not limited by their text to state action, but it is clear they apply only to state action.
A thirteen-year-old child may not make a "driver's license" on a home computer and then protest when stopped by the police for driving without a license. Because the thirteen-year-old may not legally drive does not mean that private acts of playing driver off the public highways or creating a "license" for non-legal purposes are prohibited. However, if this person used the fake license to obtain access to a bar, then that action would come within the law. In the same way, it is impossible for a same-sex couple to conduct a private religious ceremony that legally results in marriage, and therefore, the FMA doesn't apply to the private action or ceremonies.
The FMA cannot "punish" religious organization:; that conduct ceremonies recognizing same-sex relationships. Nor would the FMA deny government funds to religious groups or deny charitable tax status to those organizations. The FMA also does not apply to private employment agreements providing health insurance to same-sex couples or other private contractual rights.5
The FMA simply does not apply to private conduct.
III. THE FMA REPRESENTS THE VERY ESSENCE OF DEMOCRATIC DECISION-MAKING
The Covington Memo argues that the FMA would displace democratic decision-making. The argument seems to be that the FMA would usurp the power of the people to decide for themselves whether to allow same-sex marriage. In fact, the FMA, and the amendment process, represents the very essence of democratic decision-making. The people of the United States have the right to amend their Constitution. Once the FMA is passed through the Senate and the House, 38 states must ratify the amendment. It is the people, acting through their elected representatives, who have the right to amend the United States Constitution. This act represents the democratic process at its apex.
The Covington Memo also cites Justice Scalia's dissent in United States v. Virginia, 518 U.S. 515, 566 (1996) for the proposition that amending the Constitution prohibits the people from changing their perceptions and opinions. This argument demonstrates a lack of understanding of the democratic process. Moreover, the statement by Justice Scalia is taken out of context and twisted to mean something he did not say.6 Justice Scalia dissented from the Supreme Court removing of the debate from the public over whether women should be admitted to military schools.
Instead of supporting the position of the opponents of the FMA, Justice Scalia's dissent supports the position of the FMA's supporters. The FMA puts the debate right where it should be-with the people and their elected representatives. The FMA represents the highest and best of the democratic decision-making process.7
IV. THE FMA IS CONSISTENT WITH THE PRINCIPLES OF FEDERALISM
Marriage has always been a national policy between one man and one woman. Utah's battle over polygamy is instructive. In 1862, the United States Congress passed the Morril Act, which prohibited polygamy in the territories, disincorporated the Mormon church, and restricted the church's ownership of property. See Late Corporation of the Church of Jesus Christ of Latter-Day Saints v. United States, 136 U.S. 1, 19 (1890). In Reynolds v. United States, 98 U.S. 145 (1878), the Supreme Court upheld the Morril Act, stating that polygamy has always been "odious" among the Northern and Western nations of Europe, and from "the earliest history of England polygamy has been treated as an offense against society." Id. at 164. The court noted "it is within the legitimate scope of the power of every civil government to determine whether polygamy or monogamy shall be the law of social life under its dominion." Id. at 166. To further the national policy of one man and one woman, Congress passed the Edmunds Act in 1882, and later passed the Edmunds-Tucker Bill in 1887. See Late Corporation of the Church, 136 U.S. at 19. See also Davis v. Beason, 133 U.S. 333 (1890).
As a condition to be admitted to the Union, Congress required the inclusion of anti-polygamy provisions in the constitutions of Arizona, New Mexico, Oklahoma, and Utah. See Arizona Enabling Act, 36 Stat. 569; New Mexico Enabling Act, 36 Stat. 558; Oklahoma Enabling Act, 34 Stat. 269; Utah Enabling Act, 28 Stat. 108. See also Murphy v. Ramsey, 114 U.S. 15 (1885). For Arizona, New Mexico and Utah, the Enabling Acts permitting these states to be admitted to the Union required that the anti-polygamy provisions be "irrevocable," and that in order to change their laws to allow polygamy, each state would have to persuade the entire country to change the marriage laws. See Romer v. Evans, 517 U.S. 620, 648-49 (1996) (Scalia, J., dissenting). Idaho adopted the constitutional provision on its own, and the 51st Congress, which admitted Idaho into the Union, found its constitution to be "republican in form and . . . in conformity with the Constitution of the United States." Act of Admission of Idaho, 26 Stat. 21.5. To this day, Arizona, Idaho, New Mexico, Oklahoma and Utah state in their constitutions that polygamy is "forever prohibited." See Ariz. Const. art. XX, ¶ 2; Idaho Const. art. I, § 4; N.M. Const. art. XXI, § 1; Okla. Const. art. I, § 2; Utah Const. art. III, § 1.
When commenting on the national policy of marriage as the union of one man and one woman, the Supreme Court declared the following: "[C]ertainly no legislation can be supposed more wholesome and necessary in the founding of a free, self-governing commonwealth, fit to take rank as one of the co-ordinate States of the Union, than that which seeks to establish it on the basis of the idea of the family, as consisting in and springing from the union for life of one man and one woman in the holy estate of matrimony; the sure foundation of all that is stable and noble in our civilization; the best guaranty of that reverent morality which is the source of all beneficent progress in social and political improvement."-Murphy, 114 U.S. at 45.
The national ban on polygamy, or put another way, the national policy of marriage between one man and one woman, is enforced in many ways. A juror who has a conscientious belief that polygamy is right may be challenged for cause in a trial for polygamy, and anyone who practices polygamy is ineligible to immigrate to the United States. See Witherspoon v. Illinois, 391 U.S. 510, 536 (1968) (citing Reynolds, 98 U.S. at 147, 157); 8.U.S.C. § 1182(A). That is to say, a polygamous relationship recognized in a foreign jurisdiction will not be legally recognized in the United States.8
Although states have traditionally regulated the edges of marriage (divorce, alimony, support, custody and visitation), they have historically never regulated or altered the essence of marriage (the union of one man and one woman). The recent exception is Massachusetts, and the act by that court now threatens the rest of the nation on this central issue of marriage. The FMA merely carries forward the longstanding national policy that marriage is the union of one man and one woman, and thus is consistent with the history of marriage in this country.
V. THE FMA CONTINUES THE NATIONAL POLICY OF MARRIAGE AS ONE MAN AND ONE WOMAN AMONG ALL BRANCHES OF GOVERNMENT
The FMA is designed to maintain the historic status quo regarding marriage as the union of one man and one woman. This core marriage policy therefore applies to all branches of government. If the Executive, Legislative or Judicial branch sought to order, enact or decree same-sex marriage, the FMA would prohibit such action. However, the FMA does not prohibit the legislature from extending legal protection or benefits to same-sex couples.
The argument in the Covington Memo that opines the FMA would tell a state court how to interpret its constitution is undercut by the admission contained in the same paragraph. The memo concedes that "a state constitution may not permit something that an otherwise valid federal law forbids. . . ." Our constitutional form of government has never permitted states to interpret their constitutions in a manner that conflicts with the federal constitution. The United States Constitution obviously preempts any state law to the contrary. See Good News Club v. Milford Central Sch., 533 U.S. 98, 107 n.2 (2001) (contrary state law must yield to the United States Constitution); Romer v. Evans, 517 U.S. 620 (1996) (contrary state constitutional provision must yield to the United States Constitution); Falwell v. Miller, 203 F. Supp. 2d 624 (W.D. Va. 2002) (same). The FMA is consistent with constitutional jurisprudence.
VI. THE FMA WOULD DECREASE LITIGATION OVER MARRIAGE
The FMA would limit the judicial chaos that is currently escalating throughout the country.9 There are currently about 40 separate court challenges over same-sex marriage pending, most of which began since February 12, 2004, the day San Francisco Mayor Gavin Newsom issued licenses to same-sex couples. This number increases daily. Two more suits were filed July 12 in Florida, where three other suits were filed within the past several weeks. The suits throughout the country have one thing in common-a claim that the state and federal constitution require a state to permit two people of the same sex to marry.10
The FMA would ensure the maintenance of the longstanding national policy; of marriage as the union of one man and one woman. The FMA is designed to bring order and stability to the marriage union and thus to halt the current litigation frenzy.
VII. CONCLUSION
The FMA preserves marriage as the union of one man and one woman, and places the decision on this important matter with the people. Passage of the FMA is the only way to protect marriage and it is entirely consistent with constitutional jurisprudence and federalism.
Mathew D. Staver, Esq.,
President and General Counsel, Liberty Counsel.
Rena Lindevaldsen, Esq.,
Senior Litigation Counsel, Liberty Counsel.
Erik Stanley, Esq.,
Chief Counsel Liberty Counsel.
Anita L. Staver, Esq.,
Litigation Counsel, Liberty Counsel.
FOOTNOTES
1 The July 2 letter discusses in great detail the 33 lawsuits taking place in 12 states-with lawsuits in 9 of those states commenced since February 12, 2004, when San Francisco Mayor Gavin Newsom began issuing certificates to same-sex couples. In many cases, the most shocking aspect is the willingness of some judges to abdicate their role as judge to become legislator, and the willingness of some state attorney generals to abdicate their role as law enforcement officials to become political activists. Without question, there is a culture-changing debate taking place in this country, but it is not taking place in the state legislatures where elected representatives can debate the issue. Instead, the battle is in the courtrooms of America. Although the fact that courts, and not legislators, have been the ones making the laws granting same-sex couples legal benefits is itself shocking. The disturbing reality is that those who believe marriage should be limited to the union of one man and one woman are frequently not allowed to participate in the courtroom battles. Instead, those who support traditional marriage are often kept out of the litigation by courts, state attorney generals, and the homosexual advocacy organizations on the erroneous theory that same-sex marriage does not concern them and will not harm marriage or the country. Thus, some courts are rushing ahead without the opportunity for debate, dialogue, and with absolutely no evidence concerning the impact same-sex marriage would have on the culture.
2 The word "marriage" appears in the Massachusetts constitution in the only section that places an express restriction on the authority of the judiciary.
3 A federal lawsuit challenging the Goodridge decision as violating the federal guarantee of a republican form of government-i.e., the court usurped the powers of the legislature-was unsuccessful before the First Circuit Court of Appeals. The Court of Appeals held that absent extreme cases, such as abolishing the Legislature or creating a monarchy, there is no violation of the federal Guarantee Clause. See Largess v. Supreme Judicial Court for State of Massachusetts, 2004 WL 1453033, 1st Cir. (Mass.).
4 That which a legislative body "may" enact on its own is far different than being "required" to act pursuant to a court mandate.
5 The Covington Memo cites the case of Shahar v. Bowers, 114 F. 3d 1097 (11th Cir. 1997) in support of its argument that the FMA would apply to private conduct. This case suggests nothing of the sort. In Shahar, the Attorney General of Georgia withdrew a job offer from an attorney who had participated in a same-sex "marriage" ceremony. Absent the FMA, an Attorney General would prevail when choosing to hire or retain staff attorneys. The government as an employer is given great deference in hiring/firing under the application of the Pickering balancing test used in Shahar. The FMA would change nothing with regard to how employees are treated. The statement that people could be "punished" under the FMA for private ceremonies cannot be supported by the facts of Shahar-the fact is that the employee was not "punished" for entering into a "same-sex" marriage. It was a well-publicized, controversial ceremony that was attended by people in the department. Id. at 1101. The revelation that she was "marrying" a woman "caused quite a stir" in the office, causing staff attorneys to wonder about the employee's decision-making ability under the facts of the case. Id. at 1105-06.
6 In fact, one need look no further than the Constitution itself to recognize the absurdity of this argument. The Eighteenth Amendment was ratified in 1919 to prohibit the "manufacture, sale, or transportation of intoxicating liquors. . . ." However, fourteen years later, the people ratified the Twenty-first Amendment that repealed the ban on liquor. Even a Constitutional Amendment may be changed over time by another Constitutional Amendment.
7 To the extent that the Thirteenth, Fourteenth and Fifteenth Amendments violated federalism, the states consented to this act by the passage of these amendments.
8 If same-sex marriage were sanctioned it would be virtually impossible to ban polygamy. When Tom Green was put on trial for polygamy in Utah in 2001, several articles and editorials appeared in various newspapers supporting the practice of polygamy
(The Village Voice, Washington Times, Chicago Tribune, and the New York Times). Although the ACLU initially tried to minimize the idea of the slippery slope between gay marriage and polygamy, the ACLU itself defended Tom Green during his trial and declared its support for the repeal of all "laws prohibiting or penalizing the practice of plural marriage." Polyamory (group marriage) is also an inevitable consequence of sanctioning gender-blind marriage. See Deborah Anapol, Polyamory: The New Love Without Limits. Paula Ettelbrick, former legal director for Lambda Legal Defense and Education Fund, supports same-sex marriage and state-sanctioned polyamory. Ettelbrick teaches law at the University of Michigan, New York University, Barnard and Columbia. A number of other law professors similarly promote polyamory, including Nancy Polikoff at American University, Martha Fineman at Cornell University, Martha Ertman at the University of Utah, Judith Stacey, the Barbara Streisand Professor of Contemporary Gender Studies at the University of Southern California, and David Chambers at the University of Michigan.
9 The Civil Rights Act of 1964 began an explosion of litigation. A current search on Westlaw for only the employment provision section of the Act (Title VII) reveals 10,000 federal cases, which is the maximum number of cases Westlaw can retrieve. All of the federal and state cases would amount to several tens of thousands of cases. However, the fact that the Civil Rights Act spawned litigation is not sufficient reason to refrain from passing the Act. In the case of the FMA, the litigation is sure to decrease.
10 One Utah case argues that polygamous marriage should be permitted.
Mr. CORNYN. At this point, I yield the floor.
BREAK IN TRANSCRIPT
Mr. CORNYN. Could I ask for a brief unanimous consent request?
Mr. LIEBERMAN. I yield to the Senator for a request.
Mr. CORNYN. I believe we have been going back and forth to each side. I certainly want to accommodate the Senator so everyone will be able to be heard, but we also have some folks on our side.
Mr. LIEBERMAN. Go right ahead.
Mr. CORNYN. I ask unanimous consent that Senator Allard be recognized for 5 minutes out of the 25 minutes remaining on our side until the chairman comes to the floor and the leadership time is reserved under a previous consent, and then Senator Santorum be recognized as our next Republican speaker for 10 minutes on our side, and then finally the last 5 minutes of that 25-minute segment, that Senator Sessions be recognized.
The PRESIDING OFFICER. Without objection, it is so ordered.
BREAK IN TRANSCRIPT
Mr. CORNYN. Mr. President, we have additional speakers on our side who are ready, but the practice has been to go back and forth, so we would be glad to allow time for our Democratic colleagues.