Federal Marriage Amendment - Motion to Proceed

CONGRESSIONAL RECORD
SENATE
FEDERAL MARRIAGE AMENDMENT-MOTION TO PROCEED

Mr. LEVIN. Mr. President, the Constitution is a document that should only be amended with great caution. This is one of those moments when we would be wise to submit the strong feelings on this issue to careful deliberation.

Unfortunately, proponents have chosen to do otherwise. The language we are debating was introduced less than 4 months ago. It is not clear what text we would even be voting on. The proposed language changes almost daily, like the weather. The amendment was not voted on by the committee of jurisdiction and we do not have the benefit of a committee report laying out the pros and cons of the amendment.

For purposes of comparison, the Congressional Research Service looked at constitutional amendments originating in the Senate over the last 40 years. Since 1963, 691 constitutional amendments have originated in the Senate. Including cloture votes, only 19 of these measures were voted on in the Senate. According to CRS, only four times in those 40 years has a constitutional amendment that originated in the Senate been debated in the Senate without first being reported by the Judiciary Committee. And of those four times, only the amendment providing Congress the power to limit campaign expenditures, versions of which were considered by the full Senate in the 100th, 105th, and 107th Congresses, came to the floor without earlier amendments on the same subject having been reported by the Senate Judiciary Committee. And that amendment was not adopted. The amendment we are currently debating has received less consideration than any constitutional amendment originating in and voted on in the Senate in at least the last 40 years, with the possible exception of one which was defeated.

In 1979, a constitutional amendment providing for the direct election of the President and Vice President was brought directly to the Senate floor. Senator Thurmond, then ranking member of the Judiciary Committee, protested the tactic, saying "The Judiciary Committee is the proper machinery for referral of this resolution. It is set up under our rules for considering a measure of this kind. It should be utilized and should not be sidestepped as it attempted to do here with this procedure." He was joined by the then ranking member of the Subcommittee on the Constitution, Senator HATCH, who said "To bypass the committee is, I think, to denigrate the committee process, especially when an amendment to the Constitution of the United States of America, the most important document in the history of the Nation, is involved."

Senators Thurmond and HATCH's efforts to encourage thoughtful consideration were successful and the amendment was referred with unanimous consent to the Judiciary Committee for its consideration. Our consideration of the pending amendment would also benefit from such a process.

One purpose of the pending amendment is stated to be to protect one State from imposing its view of marriage on other States. But this debate is taking place before the courts have even had the chance to determine the constitutionality of the Defense of Marriage Act, which almost all of us voted for, which says that "No State . . . shall be required to give effect to any public act, record, or judicial proceeding or any other State . . . respecting a relationship between persons of the same sex that is treated as a marriage under the laws of such other State . . . or a right or claim arising from such relationship." Defense of Marriage Act defines "marriage" as "only a legal union between one man and one woman as husband and wife."

Even though the Defense of Marriage Act has yet to be tested in court, some proponents of the pending amendment have claimed the act will be ruled unconstitutional and that the full faith and credit clause of the Constitution will force States opposed to same-sex marriages to recognize same-sex marriages established in other States. However, many experts disagree.

In her testimony before the Senate Judiciary Committee in March, Professor R. Lea Brilmayer, a Yale Law School expert on the full faith and credit clause, cited the Supreme Court in Pacific Employers Insurance Company v. Industrial Accident Commission, 1939: "We think the conclusion is unavoidable that the full faith and credit clause does not require one state to substitute for its own statute, applicable to persons and events within it, the conflicting statute of another state, even though that statute is of controlling force in the courts of the state of its enactment . . ." Professor Brilmayer testified that less formal legal instruments, such as marriage licenses, have been "entitled to less recognition even than legislation" and that "marriages entered into in one state have never been constitutionally entitled to automatic recognition in other states."

Amending the Constitution should be a measure of last resort. The Defense of Marriage Act should be tested in court before a constitutional amendment is considered, the purpose of which is to achieve the purpose of the statute.

In addition, the language of S.J. Res. 40 itself contains a host of problems. The amendment reads, "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."

Not surprisingly, given the lack of deliberation, there appear to be differences of opinion on what the amendment provides.

Some have argued that the amendment's language relative to "legal incidents" of marriage does not ban civil unions or the extension of other rights to same-sex couples. But here is what Professor Cass Sunstein, a leading constitutional scholar at the University of Chicago Law School, has to say:

What is meant by "the legal incidents thereof"? Does this provision ban civil unions? Does it forbid States from allowing people in same-sex relationships to have the (spousal) right to visit their partners in hospitals? Does it bear on rules governing insurance? At first glance, the term "legal incidents thereof" appears to forbid States from making cautious steps in the direction of permitting civil unions. And does the word "require" include "permit"? Or consider the recent Allard amendment, which says that neither the federal Constitution nor any state Constitution shall be construed to require that marriage or "the legal incidents thereof" must be "conferred" on same-sex marriages. The most serious difficulty is that the words "legal incidents thereof" raise the same questions about civil unions and spousal benefits and privileges.

For all these reasons, I will vote no.