Marriage Protection Amendment--Motion to Proceed--Continued

MARRIAGE PROTECTION AMENDMENT--MOTION TO PROCEED--Continued

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Mr. McCAIN. Mr. President, I believe that the institution of marriage can serve its public purposes only when it is understood as being a union between one man and one woman. It is this understanding that offers public reinforcement to the vital and unique roles played by mothers and fathers in the raising of their children. It is this understanding that offers a foundation for principled objections to those who would pursue the imprudent agenda of dismantling an institution that has served us well, and replacing it with newer and more flexible understandings that are of questionable public value.

I also believe in the institution of republican government as described in the U.S. Constitution. This, too, is an institution that has served us well, founded upon the precept that the American people speak through their elected representatives, and these representatives remain at all times answerable and accountable to the people whom they serve. Today, on the question of marriage, we are told by advocates on both sides of the debate that these two institutions, as they are currently understood, cannot be reconciled, and that one or the other must be changed. I do not agree, and thus I do not at this time support the proposed Marriage Protection Amendment.

The proposed amendment would establish in our Constitution a permanent resolution of a debate that is currently and properly being resolved in different ways, in 50 different States, by the people's elected representatives. Our system of federalism is not easily separable from our commitment to republican government, because it is driven by the idea that we are best governed when those who represent us live where we live, and share the values that we share. It is this understanding that has allowed us the strength, as a Nation, to time and again preserve our unity and confront our challenges in times of crisis, no matter how great our differences on issues that are the subject of heated public debate. The continued vitality of America's commitment to federalism and republican government offers a hopeful example to strife-torn areas of our world where conflicts are tragically settled with bullets rather than ballots. The constitutional value of federalism is doubly important in the area of family law, because power to legislate in this area has traditionally been reserved to the states, and because issues of family structure affect the fabric of the broader community, creating the opportunity for approaches that reflect the values of the States that form our Nation.

Most Americans believe, as do I, that the institution of marriage should be reserved for the union of a man and a woman. Wherever the question of same-sex marriage has been put to the test of public approval, it has been decisively rejected. Presently, 19 States protect in their constitutions traditional definitions of marriage. In 2004, amendments to State constitutions preserving the institution of marriage exclusively as the union of a man and woman were placed on the ballot in 13 States. All 13 passed by substantial margins. Thus far, seven States have a constitutional amendment on the ballot this year. There is little doubt they will all prevail. Proponents of an amendment to my State's constitution, which I support, are working hard to collect the required number of signatures to secure a place on the November ballot. If we succeed, I am certain Arizonans will adopt it overwhelmingly.

There can be little doubt that a sizeable majority of the American people, whatever their views on other questions involving the rights of homosexuals in our society, strongly support reserving the institution of marriage for the union of one man and one woman. That majority includes, I am confident, majorities in every State in the Union. It includes Americans of both political parties, whose voting habits and general political philosophy range from conservative to moderate to liberal.

It is obvious that there is a broad consensus in this country in support of the traditional definition of marriage. And when the American people are so decided in a public debate, their elected representatives will defend that consensus. Forty-five States have either constitutional protections or statutes on the books defining marriage in traditional terms. In 1996, Congress passed and President Clinton signed into law the Defense of Marriage Act, which allows each State to deny within its boundaries the status of marriage to the union of a same-sex couple that may have been recognized in another State. To date, the Defense of Marriage Act has not been successfully challenged in Federal court.

The broad consensus in support of traditional marriage does not yet extend to support for the measure we are debating today, an amendment to the Federal Constitution defining marriage as the union between a man and a woman. I suspect that is because most Americans are not yet convinced that their elected representatives or the judiciary are likely to expand decisively the definition of marriage to include same-sex couples.

Obviously, the Massachusetts Supreme Court's ruling in 2003 effectively extended lawful marriage to same-sex couples even though it is apparent that a majority of Massachusetts residents do not support that change in the interpretation of the State's marriage laws. But there are political remedies to what, I believe, can be fairly criticized as judicial activism that ignored the will of the people and denied a State government its long established right to regulate marriage. In Massachusetts, more than 120,000 voters signed a petition to place on the ballot an amendment to the Commonwealth's constitution restoring the traditional definition of marriage. A constitutional convention to consider amending the Massachusetts constitution is scheduled to convene on July 12.

The Nebraska decision is under review by the U.S. Court of Appeals for the Eighth Circuit, which has already heard oral arguments in the case, and might issue a ruling as early as this summer. Most analysts, on both sides of the debate, believe the lower court's decision will be reversed, and the exclusive protections for traditional marriage that the people of Nebraska adopted in 2000 by a vote of 70 percent will be restored to their constitution. Nebraska's attorney General has not even felt it necessary to ask for a stay of the district court's decision pending the outcome of the appeal, which would almost certainly have been granted. I assume this is because Nebraska still has a defense of marriage law on the books, and there are no same-sex marriage cases pending in Nebraska courts or same-sex marriage legislation pending in the Nebraska Legislature.

I understand that the precipitous Massachusetts decision as well as the unlawful granting of marriage licenses to same-sex couples in a few localities outside Massachusetts, challenges to traditional marriage laws in other States, and the decision last year by the Federal district court in Nebraska that struck down an amendment to Nebraska's constitution restricting marriage to a man and a woman have added to the support for a Federal marriage amendment. While that support does not mirror the broad national consensus in support of traditional marriage, it is substantial and passionate. I understand that and I respect it, and I agree that marriage a uniquely important institution should be protected. But I do not agree that all the above circumstances have made it necessary to usurp from the States, by means of an amendment to Federal Constitution, their traditional role in regulating marriage. I'm reluctant to abandon the federalism that is part of the essence of conservative political thought in our country. And I am very wary of the unintended consequences that might follow from making an exception to our federalist principles for the sake of addressing a threat to the institution of marriage that may still, indeed, seems likely to be, defeated by means far less precedent setting than amending our Nation's Constitution.

Of course, while I disagree that the current constitutional structure provides insufficient mechanisms for ensuring that the public meaning of marriage is not tampered with by activist judges, it would be disingenuous to argue that those who support the proposed amendment have no grounds for their concern. In recent decades there have been too many occasions on which the Federal Courts, including the Supreme Court, have forgotten their proper role, and abandoned the virtues of federalism and republican government in favor of imposing their own policy preferences in the guise constitutional interpretation. Decisions such as Roe v. Wade continue to distort the democratic process in ways large and small to this very day. It is a telling commentary on those who seek to change the longstanding public meaning of marriage that in many instances they have chosen to pursue their agenda through the courts rather than taking their case to the people. Those who wish to engage the issue in good faith should reject out-of-hand attempts to read into the Constitution a right to same-sex marriage, because the Constitution says absolutely nothing about it, and because the longstanding traditions of American society have defined legal marriage as a union between one man and one woman. Indeed, yet another reason I am reluctant to support the proposed amendment at this point in time is that I do not accept the proposition that the current Constitution could ever reasonably be read to contain a supposed ``right'' that it plainly does not contain.

It is just not clear to me that threats to the institution of marriage that have arisen in recent times have become a permanent breach of State authorities' traditional role in regulating and defining marriage as the people of their States and their elected representatives see fit. My confidence that the public meaning of marriage will be decided in the context of federalism and republican government rather than by judicial fiat is strengthened by the recent confirmations of Chief Justice Roberts and Justice Alito, and I hope that future appointments to that State and Federal courts give us judges who share a similar understanding of the courts' proper role in our constitutional system.

However, if I am wrong, and the Nebraska decision were to be upheld on appeal; or were other challenges to State marriage laws made and upheld; or if majority sentiment and legislative remedies in affected States fail to

overcome peremptory judicial intrusions into the political process of defining marriage; or if the Supreme Court were to reject the Defense of Marriage Act, then, and only then, would the problem justify Congress making the momentous decision to amend the most enduring and successful political compact in human history as the only recourse means to restore the public's right to define, according to the values and concerns of our communities, a critically important foundation of our society.

Let me pose a hypothetical situation to illustrate why we should be reluctant to impose a constitutional remedy to a problem that will probably be resolved in an ordinary, State by State political process, consistent with the respect for federalism we Republicans have long claimed as one of our virtues. Those of us who consider ourselves pro-life would welcome the Supreme Court's reversal of the Roe v. Wade decision that found a constitutional right to an abortion. The result of that reversal would be to return the regulation of abortion to the States, where the values of local communities would be influential. Now, further suppose that abortion rights advocates held majorities in both houses of Congress, and rather than argue State by State for liberal abortion laws, they decided to usurp the States' authority by means of a constitutional amendment protecting abortion. Wouldn't we who consider ourselves federalists loudly protest such a move? Wouldn't we all line up on the floor to quote Mr. Madison from Federalist Paper 45, that:

The powers reserved to the several states will extend to all the objects, which, in the ordinary course of affairs, concern the lives, liberties and properties of the people, and the internal order, improvement and prosperity of the State.

Yes, we would, Mr. President, yes, we would.

I believe that in the ``ordinary course of affairs,'' the American people's clear preference to retain intact the institution of marriage, defined according to the values of our communities as the union of one man and one woman, will prevail, and that attempts to ignore the people's will, either by judicial fiat or by the occasional enterprising politician will, in due course, be overcome. I might be wrong, and I respect the concerns of Americans who believe current circumstances urgently require the constitutional protection of traditionally defined marriage. But I do not believe that recent developments yet pose a threat to marriage that cannot be overcome by means short of a constitutional amendment.

While I will vote in opposition to this amendment, I believe its advocates should be reassured that if in the future the public meaning of marriage is taken from the hands of the people and altered by judges who claim falsely to speak before all others for the people's constitutional ideals, then it will be the people, acting through their elected representatives in this Chamber, who will at that time have the final word. Until then, however, I will trust in the American people and the elected representatives closest to them to pass and enforce laws upholding the institution of marriage in accord with the values of their communities.

I yield the floor.

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