Federal Marriage Amendment
FEDERAL MARRIAGE AMENDMENT-MOTION TO PROCEED-RESUMED
Mr. KENNEDY. Mr. President, under the previous agreement, I believe I am allotted 15 minutes; is that correct?
The PRESIDING OFFICER. That is correct.
Mr. KENNEDY. I yield myself 12 minutes.
Mr. President, we know there are many urgent challenges our country faces. The war in Iraq has brought sudden new dangers, imposed massive new costs, and is taking more and more American lives each week. At home, unemployment is still a crisis for millions of our citizens. Retirement savings are disappearing, school budgets are in crisis, college tuition is rising, prescription drug costs and other health care expenses are soaring, millions of Americans are uninsured, Federal budget deficits extend as far as the eye can see, we cannot even pass a budget bill, and our good friends, the Senator from California, Mrs. Feinstein, and the Senator from New York, Mr. Schumer, spoke to the Senate about the importance of continuing the ban on assault weapons that has made such an extraordinary difference in helping to protect American lives and which is about to expire in the next several days. That is a matter we ought to be considering if we are interested in security and protecting the lives of American citizens, as well as if we are going to protect family values. But, no, that is not the opportunity we have under our Republican leadership.
We just celebrated the 40th anniversary of the great Civil Rights Act of 1964. Yet now, instead of dealing with the real priorities facing the Nation, the Republican leadership, President Bush, wants us to persuade Congress to write bigotry back into the Constitution by denying gays and lesbians the right to marry and receive the same benefits and protections married couples now have.
It could not be clearer that the Republican leadership has brought up this proposal for pure politics, not for its underlying merits. They are hoping to use the issue to drive a wedge between one group of citizens and the rest of the country solely for partisan advantage.
The Republican leadership does not want a vote on the merits. Do you hear me? The Republican leadership does not want a vote on the merits.
Last Friday, Senator Reid informed the Senate that the Democrats were willing to accept a time agreement with a straight up-or-down vote on the Federal marriage amendment on Wednesday. We have cleared it on our side to do that, he said; we are ready to move forward on it; we are ready to rock and roll. Those were the words of the Senator from Nevada. And the Republican leadership refused our offer.
Can you imagine that? We have listened to all these statements, all these speeches about let the Senate exercise its will, let's take action, this is urgent, important, and we agreed to do it and they said no. No, no, the Republican leadership refused our offer, and we question their sincerity about this amendment when we offer and agree to vote at a certain time and they say, no, no, we are not going to do that; we feel passionately about this amendment; we believe in the importance of our amendment, but we do not want to permit you to vote on this amendment.
In all my years in the Senate, I do not recall a single instance in which the party that supported a measure refused an up-or-down vote on its merits and instead manipulated the process to produce a cloture vote on a motion to proceed. That is what we are faced with. You ask us why we doubt their sincerity, why we question the timing of bringing this up, and the process and the procedure when we on this side say, OK, we'll vote on it, and you say no. Oh, yes, we are sincere about our motives, we care deeply about children, we care about the Constitution, we care about all of these issues, but we don't want a vote. That just doesn't add up.
Obviously, they fear that too many Republican Senators would vote against the constitutional amendment on its merits. In fact, it is possible that it would not even get a majority of Senators to support it. When it became clear that a majority of the members in the Judiciary Committee did not support this proposal, they simply bypassed the committee process altogether.
This is not a serious debate about our constitutional tradition and values. If it were, we would have a vote on this tomorrow, up or down, as the Democratic leadership has proposed. Instead, it is a procedural way in order to put people on the record. It is a sham. It is a desperate ploy to divide the Nation for political advantage. The rabid reactionary religious right has rarely looked more ridiculous. They know they don't have the votes to come even close to passing this amendment, but they have a sufficient stranglehold on the White House and the Republican leadership in Congress to force the issue to a vote anyway, in a desperate effort to arouse their narrowminded constituency and somehow gain an advantage in the elections this year. My guess is their strategy will boomerang and that vastly more Americans will be turned off than are turned on by this appeal to stain the Constitution with their language of bigotry.
There is absolutely no need to amend the Constitution on this issue. As news reports from across the country make clear, Massachusetts and other States are already dealing with the issue, and doing it effectively, and doing it according to the wishes of the citizens of their States. Contrary to the claims of the supporters of the amendment, no State has been bound-listen to this-no State has been bound or will be bound by the rulings or laws on same-sex marriage in any other State. That is the constitutional law. You can hear it described in other forms out here, and surely it has been, but I have just stated the constitutional law.
Longstanding constitutional precedents make clear that the States have broad discretion in deciding to what extent they will honor other States' laws on sensitive questions about marriage and raising families. The Federal statute enacted in 1996, the Defense of Marriage Act, makes the possibility of nationwide enforceability even more remote.
So if it is not necessary to amend the Constitution, it is necessary not to amend it. In more than 200 years of our history, we have amended the Constitution only 17 times since the adoption of the Bill of Rights. Many of those amendments have been adopted to expand and protect people's rights.
Having endorsed this shameful proposed amendment in an effort to divide Americans and assist the faltering election campaign, President Bush will go down in history as the first President to try to write bigotry back into the Constitution. No one can now claim with a straight face that he has lived up to the campaign promise to be a uniter and not a divider.
The manner in which this amendment has been brought up to the Senate floor is disgraceful. The Republican leadership has decided to bypass the usual process of debating and marking up proposed constitutional amendments in the Judiciary Committee. They know they do not have the votes to pass it out of the committee. They also know they do not have the two-thirds majority they need to pass the amendment in the full Senate, but they have chosen to rush it to the floor of the Senate anyway, in an effort to embarrass Democrats before our convention at the end of the month.
It is Republicans who should be embarrassed. As Chairman Hatch once said:
It denigrates the committee process to bypass the Judiciary Committee, 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.
In the past 25 years, only 2 amendments out of 19 have been considered on the Senate floor without having been referred to the committee first. In both these cases, the amendment was brought before the full Senate by unanimous consent. Trying to write discrimination in the Constitution is bad enough, but throwing the Senate rules out the window and proceeding with a discriminatory amendment that the majority of Americans do not want and a majority of the Senators don't support solely for the purpose of scoring points in a Presidential election campaign demeans this institution and all who have served in it.
This debate is about politics-an attempt to drive a wedge between one group of citizens and the rest of the country solely for partisan advantage. We have rejected that tactic before, and we should reject it again.
In the Goodridge case, the Massachusetts Supreme Judicial Court was interpreting the Massachusetts Constitution, not the U.S. Constitution. As a rule, the Federal Government has no authority to tell States how to interpret their own laws and constitutions. The Federal marriage constitutional amendment would change this fundamental principle of State sovereignty by imposing a rule of interpretation on State courts.
I am certainly glad it was not done at other times of American history. The Massachusetts Constitution was written by John Adams in 1780. He wrote it virtually himself, much of it copied by the Constitutional Convention in 1787.
In 1783, the issue of slavery came before the Massachusetts Supreme Court, and Massachusetts has the only constitution of all 50 States that has been interpreted as barring slavery. We were the first State of all the States to ban slavery, the only State that banned it in the constitution itself, Massachusetts, under John Adams, the only State, in 1783. And we had slaves in my State for 150 years before it.
So it is nice to hear our colleagues talk about Massachusetts and about our court and our judges there. I remind our colleagues, of the seven Massachusetts judges who voted, six were and are Republicans. Only one is a Democrat. Six are Republicans. I happen to be someone who supports the court decision in Massachusetts. I am proud of them.
But make no mistake, a vote for the Federal marriage constitutional amendment is a vote against civil unions, domestic partnerships, and other efforts by States to treat gays and lesbians fairly under the law. It is a vote against allowing States to decide these issues for themselves. It is a vote for imposing discrimination, plain and simple, on all 50 States.
Supporters of the proposed amendment claim that religious freedom is somehow under attack by States that grant the same rights and the same benefits to same-sex couples that married couples now have. But as the first amendment makes clear, no court, no State, no Congress can tell any church, any religious group, how to conduct its own affairs. No court, no State, no Congress can require any church, any synagogue, any mosque to perform a same-sex marriage. Not a single church in Massachusetts or any other State has been required to do anything it doesn't want to do, and that will continue to be the case so long as the Federal marriage constitutional amendment does not take place.
The true threat to religious freedom is posed by the Federal marriage amendment itself, which would tell churches they cannot consecrate a same-sex marriage, even though some churches are now doing so. The amendment would flagrantly interfere with the decisions of religious communities and undermine the longstanding separation of church and state in our society.
As Rabbi Michael Namath, a member of the Union for Reform Judaism and the Central Conference of American Rabbis, explained in a recent forum:
Some religious traditions, including Reform Judaism, recognize the legitimacy of same-sex unions. Many Reform rabbis around the country routinely perform same-sex weddings. Yet some warn that if the FMA were adopted, performing a religious wedding ceremony for a same-sex couple might be unconstitutional, illegal. . . . The FMA would give the federal government express authority to bar religious groups from sanctioning same-sex marriage-and the authority to punish those that do.
. . . Court challenges on "free exercise" grounds may not succeed because the Federal Marriage Amendment, being the more recent addition to the Constitution, might supersede the "free exercise" clause. If so, this would undermine the foundations of our country.
The PRESIDING OFFICER. The Senator has used the 12 minutes.
Mr. KENNEDY. Mr. President, those who oppose gay marriage and disagree with the recent decision by the supreme judicial court have a first amendment right to express their views.
There is no justification for attempting to undermine the separation of church and state in our society or to write discriminations against gays and lesbians in the U.S. Constitution. Too often the debate over the definition of marriage and its legal incidence have ignored the very personal and loving family relationships that would be prohibited by a constitutional amendment.
More and more children across the country today have same-sex parents. What does it do to these children and their well-being when the President of the United States and the Senate Republican leadership say their parents are second-class citizens?
The decision by the Massachusetts court addressed the many rights available to married couples under the State law, including the right to be treated fairly by the State's tax laws, to share insurance coverage, to visit loved ones in the hospitals, to receive health benefits, family leave benefits, and survivor benefits. In fact, there are now more than a thousand Federal rights and benefits based on marriage.
Gay couples and their children deserve to share in all of these rights and benefits, too. Supporters of the amendment have tried to shift the debate away from equal rights by claiming their only concern is the definition of marriage, but many supporters of the amendment are against civil union laws as well and against any other rights for gays or lesbians.
Just last month we saw a new dawn for civil rights in the Senate. On an amendment to the Defense authorization bill, we passed our bipartisan hate crimes legislation by an overwhelming majority, 65 to 33. Thanks in large part to the courageous and effective leadership of Senator GORDON SMITH, 18 Republican Senators joined all Democratic Senators in approving this needed protection against hate-motivated violence. Last month's vote on hate crimes showed the Senate at its best. The decision to bring up this divisive, discriminatory, and unnecessary amendment does just the opposite.
We have far better things to do in the Senate than write bigotry and prejudice into the Constitution. We should deal with the real issues of war and peace, jobs and the economy, and many other priorities demand our attention so urgently in these troubled times. I urge my colleagues to reject this discriminatory proposal.