Federal Marriage Amendment

FEDERAL MARRIAGE AMENDMENT-MOTION TO PROCEED

Mr. SESSIONS. Mr. President, will the Senator from Arizona yield?

Mr. KYL. I would be happy to yield. I actually give up the floor.

The PRESIDING OFFICER. The Senator from Alabama is recognized.

Mr. SESSIONS. Mr. President, I thank the Senator from Arizona. He is one of the Senate's finest legal scholars. He has argued a number of cases before the Supreme Court, I believe three or more. He won all of those cases. There is not one lawyer in a thousand in America who has argued a case before the Supreme Court, much less three.

I would like to just ask one simple fundamental question, if the Senator could explain it to our colleagues and to the people of this country. If the Supreme Court found, as they indicated that they may in the case of Lawrence v. Texas, that marriage under the Due Process or Equal Protection clauses of the Constitution has to include same-sex marriages rather than just the traditional marriage form, will that not wipe out all of the constitutional amendments that are being passed in the States of America and all the statutes in America and the Defense of Marriage Act that we passed in this Congress?

Mr. KYL. Mr. President, the Senator from Alabama is also an extraordinarily fine lawyer in his own right. Of course, the answer is yes. Once the Supreme Court has spoken, and there is language in this Lawrence case that suggests to many that the Court would be inclined to rule in that fashion, then the Court has just enunciated the supreme law of the land and no State constitutional provision or Federal law in any way could attempt to override that. That would be the law of the land.

Mr. SESSIONS. If California passed it with 90 percent of the vote, or 60 percent, as I believe they did pass a statute by ballot initiative, no matter what the people voted, it would be trumped and wiped out by the ruling.

Mr. KYL. Mr. President, the Senator from Alabama is correct. The Federal Constitution trumps State constitutions. Even if the people of a State amend their own State constitution, were the Supreme Court to declare that same-sex marriages are required by the equal protection or the due process clause of the U.S. Constitution, that would be the supreme law of the land, overriding any other Federal law, State law, or State constitution.

Mr. SESSIONS. I thank the Senator from Arizona.

Mr. President, I would like to share a few thoughts this afternoon. I thank him for his insight into the complexity and the confusion that will result if we don't have a national standard as we have always had on marriage.

I thank the Senator from Pennsylvania for his courage and compassion and understanding of the importance of family.

I thank the President for his eloquent remarks last Friday on this important matter.

I thank the chairman of the Judiciary Committee, Senator Hatch, for his brilliance and for the comprehensive statements he made today and Friday concerning the need for and the custom and the legality of a constitutional amendment on this question.

People say, Why do we need to do it now?

I was in a hearing and one of the individuals said, Well, the State of Massachusetts may pass a constitutional amendment, and that would sort of, he indicated, solve the problem. I asked him, if it is all right for the people of Massachusetts or Michigan or Alabama or Utah to pass a constitutional amendment that defines marriage, what is wrong with the people of the United States and the Federal system passing a constitutional amendment to deal with marriage?

All of the people who seem to be questioning and suggesting we should not go forward with this kind of amendment are doing so on the basis that State constitutions are being amended. But as we heard from Senator Kyl, a State constitution will not solve the matter if the Supreme Court acts as they have indicated they will. I believe it is perfectly appropriate for the people of the United States to consider whether they would want to amend our Constitution.

Some say that marriage is just not important, that this is not a matter we ought to spend any time on, and why now. They say, you are just bringing this up because there is an election ongoing. Let me say that it was just last year that the Supreme Court ruled in Lawrence. It was less than a year ago when Massachusetts ruled in their case that made so much of an impact, and the result of the Massachusetts case was just brought into effect May 17 of this year.

What started this debate was not people who believe in family as we have always known it. They didn't start this debate. They didn't start the discussion, the debate and legal activism, that attempts to change a fundamental American institution. It was the courts that did so activist lawyers and activist judges.

It would indeed be unthinkable to most people that we would ever need to discuss a constitutional amendment to defend marriage. Unfortunately, the integrity of the legal system is being eroded as political agendas are being implemented more and more through rulings of the courts. That, let me say, fundamentally goes to the heart of the American democracy.

Democracy in this country rests power with the people. But lifetime-appointed judges usurp this power-and it does not even take all nine on the Supreme Court, or all seven on the Massachusetts Supreme Court. In fact, it was four out of the seven judges on the Massachusetts Supreme Judicial Court, unaccountable to the public, who issued an opinion and cannot be held to account.

If we vote on issues the American people do not affirm, do not approve of and object to, we can be removed from office.
That is the way the system works.

We must not allow this power to go to the courts. In fact, that is precisely the issue that has driven the debate ever since President Bush has been in office, even going back to President Reagan: What do you want out of judges on the courts of America? Do we want judges who impose agendas to do what they think is right under the circumstances? Or do you want judges who follow the law-Judges who care about the law and are respectful of it and indeed respectful of the people of the United States of America who, through their elected representatives, they believe should be setting social policy in this country.

That is the challenge we are facing. That is the second important part of this debate. The first is marriage is an institution of tremendous importance and the rulings we have seen in courts today will undoubtedly erode the validity, impact, and power of that institution that has helped raise healthy generations of Americans year after year. That is one aspect.

The other aspect is the power of unelected judges. That power is frightening. We have seen a number of opinions from the Supreme Court of the United States that cause concern. We saw the Supreme Court avoid ruling recently on the Pledge of Allegiance case that challenged the "under God" language in the Pledge. They could have ruled on that and nailed that issue down. I suspect it suggests the Court is undecided about that. Certainly a number of their opinions have given a basis for the Ninth Circuit Court of Appeals to strike down the Pledge of Allegiance.

The Supreme Court of the United States, in my view, is seriously drifting from its principles. We have had members of that court, more than one, start talking about European law as they analyze legal matters. They have forgotten the American Constitution is a contract between the American people and their Government. It empowers our Government to carry on certain powers and not to do others and retain to the democratic process other actions.

This amendment will have a twofold impact. No. 1, it will protect the integrity of marriage, a critical institution to our culture; No. 2, it will indicate to our courts that the American people are not incapable of defending their liberties when they are under attack by courts. They seem to think this issue will be stirred up for a number of months and then it will settle down and people will go away; that is the way it is going to be, do not worry about it. There will be editorials and church people will carry a sign and someone will sign a petition, but we have lifetime appointments and we are like philosopher kings. We can see the long term and what is good for America. We have decided this is the right thing for America to do. We will take the heat for a few months or a year or two and it will go away, we will be affirmed, and we will affirm our view and stand by it and that will be the end of that. These small-minded citizens will go away.

I am afraid there is an arrogance in some of these opinions that goes that far. It disturbs me.

One of the dissenting justices in the State of Massachusetts, I suppose the most liberal State in the country, certainly the most liberal judiciary, stated that the Goodridge v. Massachusetts decision "exceeds the bounds of judicial restraint," and he went on to note this decision "replaces the intent of the legislature with that of the court."

In other words, that is precisely what they did. The judges on the court, four of the seven, got it in their minds how marriage ought to be defined in America and they went back and took the equal protection clause of the state constitution, very similar to the U.S. Constitution, and the Massachusetts Supreme Judicial Court interpreted that clause to effect a policy change that the founders and the drafters of that constitution certainly never thought possible many years before when that equal protection clause was passed.

I suggest, without doubt, it replaced the intent of a legislature, a body in Massachusetts that is accountable to the public, with the intent of the court. That is what activism is. That is what Senator Hatch so eloquently talked about for many years in the committee he chairs. When judges impose their personal or political views, liberal or conservative, through the redefinition of the meaning of language in the Constitution, they are activist judges. We need to deal with that.

I will take a moment to go over something that has been discussed before, the Lawrence v. Texas case in 2003. Some say the Supreme Court is not going to say we have to recognize same-sex marriages along with traditional marriage. Read that opinion. Senator Hatch pointed it out.

This is the language of the Court:

In Planned Parenthood in Southeastern Pa. v. Casey, the court reaffirmed the substantive force of the liberty protected by the Due Process Clause.

That is broad language, trust me. I don't know what that means, but it is not good.

I repeat: "reaffirmed the substantive force of the liberty protected by the Due Process Clause."

And continuing:

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

And they went on to state:

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

So, persons "in homosexual relationship may seek" the same protections for these purposes, the purposes above, which includes marriage.

Justice Kennedy, who wrote the opinion for the majority in Lawrence, made clear that the holding of the case did not involve formal recognition of same-sex marriage because the holding of the case had to do with sodomy laws in Texas. It didn't have anything to do with marriage. It does not involve whether the Government must give formal recognition to any relationship that "homosexual persons seek to enter." He suggests it was not about marriage.

The Court did not issue a decision about marriage-that is correct. Justice Scalia is also correct in responding, saying "this case 'does not involve' the issue of homosexual marriage only if one entertains the belief that principle and logic have nothing to do with the decisions of this court."

In other words, the logic of the case is so compelling and powerful that if properly applied to the next case that comes before the Court, it will hold that homosexual marriage must be recognized in the same way.

That is why we are here. No one, in my view-not one Member of this body-would be able to say that marriage, as we have traditionally known it in America, is not in jeopardy as a result of this opinion. Everybody knows the Supreme Court of the United States is on the verge or may be on the verge of ruling like the Massachusetts Supreme Judicial Court did.

So marriage in America under the U.S. Supreme Court is in jeopardy. Marriage as we know it is in jeopardy by the Supreme Court. So what is wrong with this body simply allowing the American people, through their elected representatives, to pass a constitutional amendment on something as important as marriage? It is not unimportant. I reject the idea that this institution which is so valuable to our culture is not important and not worth debate in this body. They are the same ones who say: Oh, look, States are passing constitutional amendments. We don't need to pass one. But if States can pass a constitutional amendment, what is wrong with the Federal Government passing one?

And talk about confusion, as Senator Kyl said, let's say the Supreme Court rules consistent with Massachusetts. How long will it take for a constitutional amendment to be passed? In the meantime, what will happen to the marriages and all the arrangements that will be accruing around the country legally? Are they all going to be upset?

So if we are concerned about the power of the courts-I know Senator Hatch is because they are reaching beyond the traditional role of a court through activist decisions-and if we are concerned about marriage, why don't we move on this amendment? Why don't we send it forward to the people of the United States so they can consider it? Somebody said: Well, I don't like every word that is in this constitutional amendment. Maybe I could support it, but I would like it to be a little different. Well, if we move this amendment forward on the floor so it can be considered by this body, then people can offer amendments to change it. We will debate and talk about how to better word the amendment if it needs to be changed. I feel comfortable with the way it is, but I am willing to debate and talk about any changes.

I believe this body can make a difference. I believe we need to speak on this issue for several reasons. One is because we need to send a message to the courts that we control the culture of this country, we control how intimate relationships like marriage ought to be defined; that is, we the people, and not unelected, lifetime-appointed judges.

I have another chart to show; a lot of liberal lawyers in the country also agree with what I have been saying. Laurence Tribe, from Harvard Law School, last fall, right after the decision in Lawrence or about the time this decision was rendered, 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.

So again, isn't that affirmation of what I have said, that the Supreme Court is on the verge or may yet step forward with a Massachusetts-type ruling?

There is another quote I think is interesting. In Justice Scalia's dissent, he said the Lawrence decision:

leaves on pretty shaky grounds state laws limiting marriage to opposite-sex couples.

"Pretty shaky grounds."

Evan Wolfson, director of the Freedom to Marry group that favors the Massachusetts ruling, said:

But when [Scalia's] right, he's right. We stand today on the threshold of winning the freedom to marry.

He is talking about the U.S. Supreme Court.

I believe this Senate needs to consider the matter of marriage in America. We need to think
seriously about it. We need to consider whether the social science evidence I have discussed and others have discussed earlier indicate these rulings will further undermine marriage in America, thereby endangering our culture, as it inevitably will. And we need to consider the reach of Federal judges which continues to expand beyond their legitimate role.

This amendment provides an opportunity for the people to speak on both those questions. I think it is important for us. I urge my colleagues to think clearly about it. This is not harmful or negative or targeted to anybody. It is an amendment that will focus on affirming traditional marriage, family, and children, which is what a State has a right to be interested in: the institution that nurtures, raises, and educates the next generation who will lead our country. Those are important issues. I hope we will move forward with the debate, we will allow this issue to come before the Senate, we will debate it and debate the language of the amendment-and if we improve it, so be it-and then pass it and send it out to the people of America.

I thank the Presiding Officer and yield the floor.