A joint resolution proposing an amendment to the Constitution of the United States relating to marriage.

Mr. President, for those who are witnessing this debate on the floor of the Senate, it is a historic moment. It is rare the Senate engages in a debate on the question of amending this document, the Constitution of the United States. There are so many things that divide us on the floor of the Senate, between Republicans and Democrats, but there is one thing we are united behind, and that is our oath of office. That oath of office is explicit. This, in part, is what it says. Each of us takes this oath. To the best of our ability we will:

. . . preserve, protect and defend the Constitution of the

United States.

Isn't it interesting that when this Constitution was written, our Founding Fathers wanted to make certain that whoever served as President, Vice President, Member of the House or Senate, would not swear their loyalty to the United States of America but would swear their loyalty to this document. You could not become a Member of this body unless you were prepared, under oath, to say you would preserve, protect, and defend the Constitution of the United States.

The Founding Fathers understood the importance of this document they had written. They knew it embodied within its four corners the basic principles of America. It wasn't a dead document. It was a living document which could be changed. But I think the oath of office which each of us takes is a reminder of our solemn responsibility when it comes to this Constitution.

We may propose amendments to laws, make motions on the floor, pass resolutions, make our speeches, but I am one who believes when it comes to this document we have a special responsibility. It is a responsibility which requires respect and humility--humility.

Before this Senator from Illinois will propose a change in one word in this Constitution of the United States of America, I have to be convinced, I have to be absolutely sure it is essential--essential for this union to continue and essential for the rights and liberties of every American citizen.

Oh, we debate bills back and forth. We change sentences, we change punctuation, we make wholesale changes in the law. But the laws come and go, as Members of the House and Senate come and go. This document endures.

Over 11,000 times Members of the Congress have proposed changing this document. Over 11,000 times they have come to the floor of the House or the Senate and said: The Founding Fathers didn't get it right, they didn't consider this possibility. And over 11,000 different times, overwhelmingly, their suggestions have been rejected. Why? Because of the respect and the humility which each of us brings to this debate on a constitutional amendment.

Today, those who are witnessing this debate are witnessing another attempt to amend the Constitution of the United States. How often has it been done? Since Thomas Jefferson's Bill of Rights--which originally proposed, I believe, had 12 amendments; only 10 were originally approved--we have only amended this document 17 times. One time we realized we made a mistake. We passed an amendment prohibiting the sale of liquor in the United States and a few years later we repealed it. But by and large, only 17 times in the course of the history of the United States of America has this Congress said this document is insufficient; this document does not meet the needs of America; this document must be changed.

To those who are following this debate, and to my colleagues, I will tell them the proposed amendment before us today does not meet the test. It does not meet the requirement to say to those who founded this Nation and to all who carried on since that we need to pass this Federal marriage amendment. I believe it is plain wrong. It is wrong in three specifics.

First, we are talking about the institution of marriage. Traditionally, marriage is defined by each and every State. One State establishes a certain age of eligibility. Another State will establish a certain blood test that may need to be taken. Another State will limit whether certain members of families can marry. All of these provisions and limitations on marriage are State and local responsibilities. Not once will you find in this Constitution of the United States the requirement that the Federal Government in Washington establish a standard for marriage in America. So what we are discussing today is a proposed amendment to the Constitution that is clearly outside of the purview and scope of this Constitution which we have sworn to preserve and defend.

Second, there is no court ruling that brings us to this moment in this debate. It is not as if some Federal court or even a State court has said this Constitution requires that people of the same gender be allowed to marry. Not one single court in America has said that. So we come here today, the argument being made that we should preempt the possibility that at some time in the future some court will decide that in fact a marriage between people of the same gender in one State must be upheld in other States. There has never--repeat, never--been a case in any State or Federal court that says that. Yet we come to the floor of the Senate today as if the decision were handed down last week and we must stand up once and for all to preserve the right of marriage to be confined to an institution between a man and a woman. It is traditionally a State decision on what defines marriage. There is no controversy that brings us to the floor today.

What is even worse, we come to this debate with this constitutional amendment which has been proposed, and we come to the floor to debate it without a single markup by the Senate Judiciary Committee to debate the language that is being proposed. Does that show respect for the Constitution? Does that show the appropriate humility which every Member of Congress should have? Of course it does not. Those who wrote this amendment were changing it by day. And now they want to change it again. They tell us the language given to us last week has to be changed again--maybe twice.

Does this strike you as a work in progress? Does this strike you as the kind of language which should be put in this enduring document? Or does it strike you that we are taking a roller to a Rembrandt; that we are suggesting changes in our Constitution which have not met the test, the test that they address an issue of enduring significance and that the language crafted should stand beside our Bill of Rights?

Today they argue: We need to make a few amendments in this language. We have been thinking it over this week.

What is wrong with this picture? Shouldn't we take a step back and ask whether this is necessary? Ask whether, in fact, there is a court decision which requires it? Ask whether the language which we are proposing is language which will endure for generations to come?

If we cannot answer each of those questions in the affirmative, then for goodness sakes why don't we move on? I will tell you why we are not. Because this debate is not about changing the Constitution--no. They say in politics for everything that is done, there is a

good reason and a real reason. The good reason that is being given for this debate is to change the Constitution. That is not the real reason. The real reason is to change the subject of the President's election campaign because the Republican side of the aisle and those who are supporting this administration don't want to debate this Presidential election campaign on the issues most Americans identify as important in their lives. They don't want to debate the President's economic policy and the squeeze it has put on middle-income families. They don't want to debate what is happening in Iraq. They want to change the subject. They want to debate the future of marriage in America. That, to them, is more important and that is why we are here today. That is why there are statewide referenda in many battleground States like Missouri. And that is why we are hellbent to consider this amendment literally days before a certain political party coincidentally has its convention in the State of Massachusetts. That is what this is all about--changing the subject of the Presidential campaign.

Oh, they tell us in the Judiciary Committee: Incidentally, we are going to bring the flag-burning amendment up again, too. We have had this amendment up before us at other times, but they are anxious for us to vote on this again before the election campaign.

Do you know what I think we need? I don't think we need an amendment to the Constitution. I think we need a permanent law of the land that says there will be no constitutional amendment which will be proposed in a Presidential election year. Frankly, that will cause many of my colleagues to suppress the urge to use this Constitution as some sort of a political platform to try to win votes in an election.

When you take a look at this particular amendment, you find, of course, that we are considering and taking up many days of debate rather than considering other issues we ought to be talking about here on the floor of the Senate.

Do you recall the press conference last week when the Secretary of Homeland Security, Tom Ridge, told America of the danger of al-Qaida, a real danger; that they are plotting massive casualties to be brought on victims in America? We didn't know where or when, but he warned America, along with the Director of the FBI.

Then you probably read yesterday speculation about whether we might have to postpone a Presidential election because of terrorism. And you think to yourself: For heaven's sake, I guess America is still in danger; and sadly we are. Then you might think to yourself: I certainly hope the men and women serving in the Senate are doing everything they can to make our Nation safer. That is a natural reaction, one which you might expect.

All you have to do is look at the calendar of business of the Senate on the desk of every Senator and turn to the back page. You will find the status of appropriations bills that have not been considered by the Senate. Among the first two bills on the list is the Homeland Security appropriations bill--sitting on the calendar of the Senate for almost a month.

We are warned by this administration that our security is in question, that America may be in danger, and we are told by the Republican leadership on the Senate floor that we don't have time to appropriate the money to make America safer. Instead, we are going to debate a constitutional amendment over an issue that has not even reached the point in any court in the land to require a constitutional amendment.

That is just one of many issues that we could be considering.

What have we done to try to reduce the squeeze on middle-income families from increased costs for health care, increased costs for prescription drugs, increased costs for gasoline, increased costs for college education? The answer is nothing. We are too busy debating a constitutional amendment about an issue that does not exist. It says something about the priorities of the leadership.

We have not passed a budget resolution this year. We have 12 appropriations bills, including the Department of Homeland Security, that have not been enacted. This is all about changing the subject.

Paul Weyrich, CEO and chairman of the Free Congress Foundation, was very direct and blunt. He recommended that the President ``change the subject'' from Iraq to the Federal marriage amendment. It won't work because we pick up the newspaper every morning and we are reminded of the brave men and women in uniform who are literally risking their lives in Iraq. We cannot, we should not, and we will not forget them. And our attention will not be diverted from the danger to their lives and the prayers and hopes of their families. Yet that is the political agenda. That is what is before us.

We have bypassed the Judiciary Committee. The suggestion has been that we take this amendment which has been proposed, change it one, two, three, or four times, and vote on it. But the changes may include adding other amendments to it. Is that possible? Could we put in more than one constitutional amendment? Of course. So we have turned into not a Senate but a constitutional convention. Is that what we are supposed to be doing, rather than appropriating money for homeland security, rather than addressing the timely issues that America's families are facing? I hope not.

We have had one hearing on the text of a proposed amendment, and it was less than 24 hours after a new version had been written. This constitutional amendment is changing on a regular basis.

I might say that Senator Cornyn of Texas, on Friday, came and spoke on the Senate floor. He said those who oppose this constitutional amendment, as I do, ``have chosen to boycott good faith desire to have an honest discussion about the issue.'' That was his quote. Senator Allard and others have said similar things.

For the record, the Judiciary Committee, the committee of jurisdiction, has held four hearings on this issue. Senators Feingold, Kennedy, and I attended all four of those hearings. There was no boycott involved. We attended those hearings and asked questions about this issue. But there was never a markup. It was brought to the Senate floor with changes that are being made as we speak.

In the past, Senator Hatch, now chairman of the Senate Judiciary Committee, rejected this. He said you can't bring a constitutional amendment to the floor without at least going through the Judiciary Committee and looking at the language and seeing if there are better words. Here is what Senator Hatch said in 1979:

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.

That is what Senator Hatch said 25 years ago. But that is not the process he has followed as chairman of the committee today. He has taken a much different path.

This would be, incidentally, only the second time in history in which we would have enacted an amendment to the Constitution of the United States which would restrict the rights of American citizens.

Historically, our amendment process has been to expand the rights and liberties of Americans, African Americans, women, and others to give them voice in the democratic process. This would be the second time in history in which we would restrict the rights of Americans. The other time, as I mentioned earlier, we said with the prohibition amendment that we would restrict the right to sell liquor and alcoholic beverages in America. That is the one other time we did it. We did it because of a temperance crusade brought on by some religious groups and others, and then realized a few years later that it was wrong. This would be only the second time in history when we would use the amendment process to restrict the rights of American citizens.

We have no controversy at hand. The proposed amendment would be unique in that no constitutional amendment has been ratified in response to a State court ruling. There are four constitutional amendments that overrule Supreme Court decisions, but no constitutional amendment has ever been ratified in response to a nonexistent Supreme Court ruling. That is the case here.

As I listened to those on the other side arguing earlier, I couldn't believe some of the things they said. The Senator from Texas said when judges in

Massachusetts mandate same-sex marriage on our Nation, they export that marriage to other States. That is not a fact. There is nothing that has happened in the State of Massachusetts which has changed the marriage laws in Illinois, in Wyoming, in Nevada, in Texas. Nothing they have done changes the standard for marriage in my State.

He went on to say that it is a question of whether the people shall have a voice in this process. I certainly believe the people of America should have a voice in the promulgation of law. But in this situation, the people of Massachusetts have a voice and have a process and have before them a constitutional amendment which will eliminate same-sex marriage but protect the rights of civil union. The people of Massachusetts will ultimately vote on that question as will their legislators.

If you want to give the people of Massachusetts a voice in the process, they already have it. They are exercising it. There is no need for a constitutional amendment to either embellish it or reduce it in any way.

Then, the Senator from Texas said we on the Democratic side were trying to stifle debate on this constitutional amendment by not allowing the Republicans to amend it two, three, four times, or more. We are not trying to stifle the debate. That is what this is all about. This exchange is about debate. But how can you debate a moving target? How can you debate a proposal to the Constitution of the United States which may change 15 minutes from now, an hour from now, tomorrow, or Thursday? Shouldn't the Republican majority that brings this to the floor meet their solemn obligation to put language before us befitting the Constitution and not make this a construction project, a work in progress? That is what they want to do.

The Senator from Nevada on the Republican side said earlier that judicial activists are taking away the power of the legislative branch. That is not a fact. What happened in Massachusetts happened under the Massachusetts Constitution, which is being amended by their legislature as required and submitted to the people of Massachusetts. If the people are to have the final voice on this issue in Massachusetts, that is exactly what is going to happen.

The text of this proposed constitutional amendment, incidentally, is contradictory and unclear. There are some who oppose same-sex marriage but believe that civil unions should be allowed, as they are in many States, and as recognized by many private companies. But the language of this proposed Federal amendment, as it stands today--it may change-- says:

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 a

union of a man and a woman.

The operative words that should have been debated in the committee, and should be debated here are ``the legal incidents thereof.''

What does it mean? Let me give a practical example. In the District of Columbia, they have enacted a law that if you have a partner you are living with of the same gender, you can declare that for purposes of being covered by your partner's health insurance. If one person in that household, two men or two women, is working, and one is not, the person working can claim the partner living at home as covered by the same health insurance policy just as it applies to men and women in marriage.

What is wrong with that? What is so scandalous about that, that people desperate for health insurance coverage would have someone they love and share a home with be covered by health insurance?

Yet this constitutional amendment would put that and other legal incidents of marriage, such as civil unions, in jeopardy.

Let me note what has been said by Vice President Cheney. He was involved in a debate with Senator Lieberman 4 years ago in the Vice Presidential race, and this issue came up. Let me read what Vice President Cheney said when it came to the issue of defining marriage:

It's really no one else's business in terms of trying to

regulate or prohibit behavior in that regard. . . . I think

different states are likely to come to different conclusions

and that's appropriate. I don't think there should

necessarily be a federal policy in this area.

That is what Vice President Cheney said. I think he is right.

Let me read what Vice President Cheney's wife said. I am sure it took courage for her to say it, but she did just this week. Lynne Cheney, the wife of Vice President Cheney:

People should be free to enter into their relationships

that they choose. When it comes to conferring legal status on

relationships, that is a matter left to the states.

I am sure that did not make the Vice President or his wife popular in the White House, maybe not among their Republican colleagues, but they are right. This is a decision which clearly should be left to the States.

Today at lunch, the Senate Historian told us a story of Aaron Burr, a man who had served as Vice President and a man who left the Senate under extraordinary circumstances on March 1, 1805. This is what Aaron Burr said as he left the Senate about this Senate:

. . . is a sanctuary; a citadel of law, of order, and of

liberty; and it is here--it is here, in this exalted refuge;

here, if anywhere, will resistance be made to the storms of

political phrenzy and the silent arts of corruption; and if

the Constitution be destined ever to perish by the

sacrilegious hands of the demagogue or the usurper, which God

avert, its expiring agonies will be witnessed on this floor.

You don't hear many speeches like that on the floor of the Senate anymore, but Aaron Burr was correct. This is where the debate has to take place. This is where this debate on this constitutional amendment has to end. This is where Members of the Senate who have sworn to uphold, protect, and defend this Constitution of the United States will remind our colleagues to take a step back and show the respect and humility which this document deserves. To let this constitutional amendment process be taken captive by those who are trying to win votes in November is wrong. Whether it is done by Republicans or Democrats, it is just wrong. I think the American people understand that.

There are strong feelings about a man and a woman that are shared by me and by others, but we also have strong feelings about this document, a document which I have taken an oath under God to uphold and defend. And I will do that by opposing this amendment.

I am happy to yield.

I was not aware.

Certainly.

I say to the Senator, that is the argument that has been made on the other side, that the people should be allowed to speak on the issue, and if that is the case, in Nevada, Illinois, or wherever it might be, then honoring that decision would seem to be consistent with the establishment of all America.

I believe they do. I think the Senator is correct.

Yes, I have.

Yes, I do. Let's bring this to a vote. The sooner, the better.

I say there is a striking similarity. It appears they want to vote more than they want an amendment. Let's be honest about what it is about. They want to put some Senators on the spot. Trust me, the ads will be running, if they have not started already, in States across the Nation. If you oppose this constitutional amendment, they will say you are against traditional marriage. Virtually every one of our colleagues on both sides of the aisle, for that matter, support traditional marriage between a man and a woman.

I have been married 37 years, and I think the Senator from Nevada may have been married longer. I respect this institution and have committed my life to it with my wife. I think we all understand that. But understand, as well, a ``no'' vote on this amendment will be used for political purposes to change the subject of the election campaign.

I say to the Senator from Nevada, as my time is closing, there is one point I would like to make. Things have changed in my life experience, and in many others', over the time I have been in the Congress and even before. There was a time when, if there were gay members of a family, people just did not talk about it. No reference was made to it; very little was said about it. It was the aunt or uncle who never got married and no one has talked about it.

That is changing in families across America. People have had the courage to come forward and say: I have a different sexual orientation. For some reason, God has made me with a different nature. I think more and more families are accepting of that fact, as they should be. I don't know what God's plan was in bringing a man or woman to this Earth with a different sexual orientation, but in many cases they have.

All we have said, those Members on our side, is though we may not support gay marriage or marriage of the same sex, we ask for tolerance and understanding.

The phone calls I have been receiving in my office have been phone calls generated by people who sincerely support this amendment and many who have some different agenda. It is, unfortunately, a very strident and hateful agenda. I hope that whatever the outcome of this amendment, we will say to the American people: Be tolerant; be understanding. Some people are different but they are our family. They are our neighbors. They are our fellow Americans.

This proposed constitutional amendment is divisive and unnecessary, and contains many ambiguities and unresolved issues that have not been examined or considered by the Senate Judiciary Committee.

We have less than 30 legislative days left this year. There already are more pressing issues than we could possibly address in that short time, without spending this week on a proposed constitutional amendment that even its supporters acknowledge does not have the votes to succeed.

In light of Secretary Ridge's announcement last week, we should be focusing our attention on homeland security, including port and rail security.

We must address the everyday needs and concerns of American citizens, especially those being squeezed in the middle class.

Since President George W. Bush has come to office, average weekly earnings have risen only 1 percent, while gas prices have risen 25 percent; college tuition has risen 28 percent; and family health care premiums have skyrocketed by 36 percent.

Unfortunately, this Senate has ignored these concerns and has done nothing to increase wages. For example, we have not increased the minimum wage in almost 7 years, and the benefit of that increase has been completely erased by inflation.

Even worse, unless Congress acts to restrict the President's proposed overtime regulations before our August recess, those regulations will slash the paychecks for thousands of Americans currently receiving overtime compensation by 25 percent.

Finally, we still have not passed a budget resolution this year and have 12 appropriations bills that must be enacted.

So why are we debating this constitutional amendment instead of addressing these more pressing issues?

I suggest that there is an effort here to try to divert American families from their real concerns.

In fact, this is a strategy that was advocated by Paul Weyrich, CEO and chairman of the Free Congress Foundation, who recommended that the President ``change the subject'' from Iraq to the Federal Marriage Amendment.

We must not allow for such politicization of our Constitution--our Nation's most sacred document. That is why I believe we must ban the proposal of constitutional amendments in a Presidential election year-- certainly within 6 months of an election.

By considering this issue outside of Presidential election years, we may be better able to consider the implications of this proposal without added political pressures. This may be one reason why only 3 of the 27 amendments to our Constitution have been passed by Congress in Presidential election years.

Of course, I do not mean to imply that those who support this amendment have only political motives. Some of my colleagues on the other side of the aisle sincerely believe that no issue is more important than this one.

However, the Judiciary Committee simply has not given this proposed constitutional amendment the thorough and measured consideration worthy of a possible change to our constitution--certainly not if one believes this is the most important issue facing our society today.

During the 108th Congress, the Senate Judiciary Committee has held hearings on four proposed constitutional amendments: victims rights, flag desecration, the continuity of Congress, and this one.

Three of those proposed amendments have been debated and marked up by the Constitution Subcommittee, following the long-standing tradition of our committee. The amendment today is the only one that bypassed this traditional consideration.

It is ironic that the victims' rights and flag desecration amendments have followed the committee's traditional process, even though both have been considered by the Senate in the past, while this proposed amendment--which has never been considered by the Senate before-- bypassed the full committee and subcommittee markups and barely even had a hearing.

Although the Judiciary Committee and Constitution Subcommittee have held four hearings on the issue of same-sex marriage, only one hearing was on the text of a proposed constitutional amendment--and that hearing was held less than 24 hours after this new version of the proposed amendment was introduced.

Furthermore, unlike our committee's hearings on the victims' rights amendment and flag discretion amendment, the only hearing on the text of this proposed amendment did not have a representative from the Department of

Justice to share the administration's views.

On the issue of hearings, before I go further, I would like to respond to Senator Cornyn, who on Friday said that in committee hearings on this issue, Senators who oppose this constitutional amendment ``have chosen to boycott a good-faith desire to have an honest discussion about this issue.'' Senator Allard and others have made similar comments.

For the record, the Judiciary Committee--as the committee of jurisdiction--has held four hearings on this issue. Senators Feingold, Kennedy, and I attended all four, and at each one, Democratic Senators outnumbered Republican Senators.

This is hardly evidence of a refusal to engage in an honest discussion. In fact, just the opposite is true: We are asking for a full and thorough debate--but in the committee of jurisdiction, where such consideration is not only appropriate, but necessary, before we debate this proposal on the Senate floor.

This request is the same as the one made by Senator Hatch in 1979, when a constitutional amendment regarding the direct election of the President and Vice President bypassed the Judiciary Committee and was debated on the floor.

In that debate, Senator Hatch, then ranking member of the Constitution Subcommittee, 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.

Senator Hatch's argument prevailed, and the proposed constitutional amendment was referred to the Judiciary Committee by unanimous consent.

Unfortunately, Senator Hatch has taken a different path with this proposed constitutional amendment, which is only the second constitutional amendment in more than a decade to be debated on the Senate floor after being placed directly on the Calendar without committee referral or report.

I believe anything less than full consideration and debate by the Judiciary Committee not only would denigrate the committee process, but also would be a disservice to those who sincerely believe this is the most important issue facing our country. Without such examination, many issues in the proposal before us today will remain unresolved and unclear.

The most important issue we must resolve is whether a constitutional amendment regarding marriage is necessary.

I am aware that Article V of the Constitution provides for amendments, and I agree that the Constitution is a living document.

However, as James Madison wrote in The Federalist No. 49, the Constitution should be amended only on ``great and extraordinary occasions.''

Our Nation has heeded that advice, and although there have been more than 11,000 proposed constitutional amendments since 1789, we have amended our Constitution only 27 times, including the adoption of the Bill of Rights in 1791.

We must continue to approach constitutional amendments with great humility and respect. To do otherwise would be to take a roller to a Rembrandt.

The last time Congress submitted a constitutional amendment that was ratified by the States was more than 30 years ago, when the voting age was lowered to 18. That amendment was appropriate because it followed the principle of six other constitutional amendments that expanded voting rights.

By contrast, the proposed amendment we are considering today would be the first constitutional amendment to restrict the rights of individuals since the 18th Amendment regarding Prohibition was ratified in 1919. Fourteen years later, that amendment was repealed.

This proposed amendment also would be unique in that no constitutional amendment has been ratified in response to a State court ruling.

Furthermore, although there are four constitutional amendments that overruled Supreme Court decisions, no constitutional amendment has been ratified in response to a non-existent Supreme Court ruling. In other words, this proposal is a solution in search of a problem.

In 1996--another Presidential election year--Congress passed the Defense of Marriage Act, under which no State can force another State to recognize the marriages of same-sex couples. In other words, each State has its own power to define marriage.

In the 8 years since DOMA was passed, it has never been successfully challenged. Although many have speculated that it may be unconstitutional, not a single Federal judge in this country has indicated that DOMA is unconstitutional or unlawful in any way, shape, or form. DOMA is still good law.

Our country now has a preemptive foreign policy. I do not think we should have a preemptive Constitution. This proposed amendment would preempt the possibility that the Defense of Marriage Act will be found unconstitutional. That is premature and therefore inappropriate for an amendment to our Constitution.

The concerns I have raised thus far are reason enough to oppose this constitutional amendment. However, I have not even discussed the text of the proposal itself.

This constitutional amendment States the following:

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.

These two sentences are contradictory. The first sentence states that marriage must be between a man and a woman. But the second sentence suggests that marriage other than between a man and a woman would be permissible as long as that recognition occurred through a statute, rather than constitutional means.

Which is it? Does this proposed constitutional amendment permit States to enact laws that would allow marriage to consist of the union of same-sex couples? If so, the first sentence must be modified. If not, the language in the second sentence must be more explicit to reflect the fact that this constitutional amendment would take away the right of States to define marriage within their borders.

Furthermore, the overall intent and scope of the first sentence also are unclear. At first, this language seems straightforward enough. However, there are at least two ambiguities regarding this sentence.

First, Representative Marilyn Musgrave, the House sponsor of this proposed constitutional amendment has stated the following:

In summary, the first sentence of the FMA is designed to

ensure that no governmental entity . . . at any level of

government . . . shall have power to alter the definition of

marriage so that it is other than a union of one man and one

woman.

However, as Representative Bob Barr noted in his testimony before the Judiciary Committee, the scope of this first sentence is not limited to government actors. According to Representative Barr, this sentence ``appears to bind everyone in the United States to one definition of marriage.''

As a result, religions that marry couples of the same sex in religious ceremonies may be barred from doing so. This blurs the line between church and State and threatens the Free Exercise Clause of the First Amendment.

While I take the sponsor at her word that this is not her intention, the language again is ambiguous and must be clarified.

Secondly, it is uncertain whether arrangements such as civil unions and domestic partnerships could exist at all under this first sentence of the Federal Marriage Amendment.

Although Senator Allard and Representative Musgrave have stated that this sentence should not apply to civil unions or domestic partnerships, lawsuits have been brought in California and Pennsylvania that challenge domestic partnership laws based on the States' definition of marriage as being between a man and woman.

Dennis Archer, president of the American Bar Association, agrees that there is ambiguity and sent a letter to the Senate which States the following:

Despite the claims of the resolution's authors, it is

unclear whether a State would be prohibited from passing laws

permitting civil unions or domestic partnerships and

providing State-conferred benefits to the couples involved.

Based on these lawsuits and the ABA's opinion, the language of this

amendment must be more explicit regarding whether civil unions and domestic partnerships could exist.

The second sentence also is full of ambiguity and undefined terms.

For example, what does the term ``legal incidents thereof'' entail?

I asked Professor Phyllis Bossin, who is Chair of the American Bar Association Family Law Section and who testified before the Judiciary Committee on behalf of the American Bar Association, what this phrase meant.

She said there were hundreds of such rights and responsibilities and provided a list of dozens of them, including the following: the right to visit in a hospital; the ability to authorize medical treatment; family health insurance; the ability to consent to organ donation; eligibility for life or disability insurance; interstate succession, which is when a spouse dies without a will; the right to adopt; domestic violence laws; the right to seek compensation for wrongful death; and the ability to file joint petitions to immigrate.

I ask unanimous consent that Professor Bossin's list of selected legal incidents of marriage be submitted for the Record.

Under the Federal Marriage Amendment, none of these legal incidents could be provided by Federal or State courts. For example, Professor Bossin cited a California trial court ruling that the State constitution requires a partner in a same-sex union be allowed to sue for the wrongful death of her partner. This proposed constitutional amendment would preclude such a finding by a court.

This amendment also would have prohibited Vermont from establishing civil unions, because a court had ruled that the law to create such relationships was constitutionally required.

These examples go far beyond the scope of ``marriage,'' but they do not tell even half of the story: Under the Federal Marriage Amendment, all State and Federal laws that provide any of these ``legal incidents of marriage'' could be struck down.

Senator Allard and others who support this amendment argue that it would allow State legislatures to provide the legal incidents of marriage through legislation, and that this amendment only constrains courts. However, a more critical analysis--which, again, should have been done at the committee level--demonstrates that this simply is not the case. For example, Professor Bossin has stated that the right to adopt is a legal incident of marriage. What if the Pennsylvania State legislature enacts a law to allow same-sex couples to adopt, and someone challenges the constitutionality of that law?

Under the second sentence of the proposed Federal Marriage Amendment, neither the State constitution nor Federal constitution shall be construed to require that the right to adopt--as a legal incident of marriage--be conferred upon a same-sex couple. Therefore, the court would have no grounds on which to uphold the constitutionality of this law, and the law would be struck down.

The possibility that even laws conferring the legal incidents of marriage could be invalidated raises serious questions about the intent and practical effects of the Federal Marriage Amendment.

This proposed constitutional amendment also undermines the democratic process regarding State constitutional amendments. In Massachusetts, the proposed State constitutional amendment that may be on the ballot in 2006 would define marriage as the union of one man and one woman, while simultaneously establishing civil unions for same-sex couples with ``entirely the same benefits, protections, rights, privileges, and obligations that are afforded to persons [who are] married.''

However, under the plain reading of this proposed Federal constitutional amendment, the Massachusetts State constitution cannot be construed to require the legal incidents of marriage to be conferred to same-sex couples. In other words, even if the people of Massachusetts voted to ratify this State constitutional amendment, the second part of that amendment--the part that establishes civil unions-- would be void because of the Federal Marriage Amendment.

Furthermore, because of the first sentence of the Federal Marriage Amendment, under no circumstance could the people or the State legislature define marriage as other than between a man and a woman. How, then, does the Federal Marriage Amendment achieve its goal of advancing the spirit and principles of democracy.

Finally, I believe that words should not be added or deleted from our Constitution or from proposed constitutional amendments in a careless manner. Therefore, I would like to know why the original version of this proposal was modified by removing the reference to ``groups.'' The first version of the Federal Marriage Amend-

ment, S.J. Res. 26, stated that marital status or the legal incidents thereof would not be conferred upon ``unmarried couples or groups.''

The current version states that marriage or the legal incidents thereof shall not be conferred upon ``any union other than the union of a man and a woman.'' It appears to me this change was made because we are still struggling in some parts of our Nation with the idea of polygamy. Professor Bossin agrees that the current version of the proposed constitutional amendment does not explicitly prohibit polygamy, because polygamists enter into the union of a man and a woman--they simply do it multiple times.

Was it in fact the intent of the sponsors to leave the door open for polygamy? If so, why should polygamous groups be treated differently from same-sex couples? If not, why was the reference to ``groups'' deleted from the original version?

In addition to expressing my serious procedural and substantive concerns, I would like to address some of the arguments in support of this proposed constitutional amendment.

First, I have heard many Senators argue that this constitutional amendment is necessary to provide the American people with a voice and to protect marriage from so-called activist judges. As I already have noted, this proposed constitutional amendment actually undermines democracy by removing the power of the people and their elected representatives to define marriage in their States, to provide for civil unions in their State constitutions, or even to enact legislation to provide the legal incidents of marriage.

I also disagree that democracy is pitted against so-called judicial activism. As University of Colorado constitutional law professor Richard Collins said, judicial activism is ``more of an insult than a philosophy.''

To argue that judicial activism is contrary to democracy is to suggest that a case like Brown v. Board of Education did not promote democracy in America. That was clearly an activist court, which took control of an issue that Congress and the President refused to address: discrimination in our public schools.

In Brown v. Board of Education, an activist Supreme Court said we are going to give equal opportunity to education across America. Doesn't that further democracy? When we celebrated the 50th anniversary of this decision earlier this year, did anyone argue that it didn't?

The same would be said of Griswold v. Connecticut, in which the Supreme Court said that families had the right to decide their own family planning and that the State of Connecticut could not dictate to them what family planning was allowed. It was a matter of privacy in family decisions. Was this an activist court in derogation of democracy that extended to these families and individuals their right to privacy?

In Loving v. Virginia, the Supreme Court said that a ban on interracial marriage was improper. Even though at the time, only 20 percent of the American people approved of such marriages, was that decision contrary to democracy or did it promote democracy?

Time and time again, judicial activism has promoted democracy. Of course, we must take care that the courts do not go too far. But to suggest that a constitutional amendment is necessary in this case simply because it was a court ruling--incidentally, by a court that consists of six Republican appointees and only one Democratic appointee--is controverted by the obvious legal precedent.

I also have heard many Senators argue that this constitutional amendment is necessary to safeguard the best environment for raising children. I agree that children raised by two parents are, in general, better off than children raised by a single parent. Many studies demonstrate this. But studies also demonstrate something else.

In 2002, the American Academy of Pediatrics--the largest pediatric organization in America--issued a report that Stated the following:

[T]he weight of evidence gathered during several decades

using diverse samples and methodologies is persuasive in

demonstrating that there is no systematic difference between

gay and nongay parents in emotional health, parenting skills,

and attitudes toward parenting. No data have pointed to any

risk to children as a result of growing up in a family with

one or more gay parents.

Dr. Ellen Perrin, a professor of pediatrics at Tufts-New England Medical Center, who is considered to be the Nation's foremost expert on children raised by same-sex couples, has studied same-sex couples and concluded the following:

What we know for sure is that children thrive better in

families that include two loving, responsible, and committed

parents. We also know that conscientious and nurturing

adults, whether they are men or women, heterosexual or

homosexual, can be excellent parents. We have a lot of

research as well as clinical experience that provide evidence

for this fact.

This evidence is based on our Nation's experience with gay adoption. Every State except Florida allows gay people to adopt.

Some States, including my home State of Illinois, allow same-sex couples to jointly petition for adoption. Many others allow for second parent adoptions, a legal procedure which allows a same-sex co-parent to adopt his or her partner's child. These States have recognized that same-sex couples can step into the lives of adopted children and provide loving and supportive families.

Under this proposed constitutional amendment, it would no longer be possible for State courts to interpret their constitutions to allow same-sex couples to adopt. Same-sex couples only would be allowed to adopt if explicitly permitted by State law--and as I have noted earlier, that State law could be challenged as unconstitutional and likely would be struck down.

Would that safeguard the best environment for these children? If this Senate is interested in the best environment for our children, we should fully fund No Child Left Behind, to provide all children with an educational opportunity and to fulfill the promise of Brown v. Board of Education.

We also should make college tuition more affordable, and we should provide families with affordable health care.

To conclude, I believe the definition of ``traditional marriage'' is an evolving one. One hundred and fifty years ago, ``traditional marriage'' in America did not include the ability of African American slaves to marry.

One hundred years ago, ``traditional marriage'' in some Western States did not include the ability of Asian Americans to marry. Just 40 years ago, ``traditional marriage'' in many States did not include the ability of African Americans to marry whites.

I understand that many supporters of this proposed amendment believe that the situation we face today is a fundamentally different one--that we must amend our Constitution to support the sanctity of marriage.

However, the sanctity of marriage is about the religious context of marriage, not the legality of it. We must be careful to separate the two.

Nothing in the Massachusetts Supreme Court ruling requires a church to conduct or to consecrate a same-sex union. On the other hand, if this proposed constitutional amendment were ratified, certain religious beliefs regarding the sanctity of marriage would be enshrined in our Constitution. This would go beyond the question of legality into sanctity, and I believe that we must maintain the bright line between the two that our Framers intended.

As one of my colleagues has said, ``I support the sanctity of marriage, but I also support the sanctity of the Constitution.'' Therefore, I urge my colleagues to reject this motion to proceed to a constitutional amendment that even the Republican leadership concedes is not ready for prime time.

Why else would they object to our unanimous consent request to have a vote on this resolution, without amendments?

The Republican leadership instead would prefer that we make it up as we go along, with one, if not two, amendments here on the Senate floor--amendments that could have been offered in a Constitution Subcommittee markup or in a full committee markup, had those not both been bypassed.

We are being asked to tinker with the words of our Nation's Constitution on the Senate floor, without even the benefit of committee analysis on the impact of these amendments. Unfortunately, this is not the first time we have considered a constitutional

amendment on the Senate floor that was a work in progress, with the sponsors trying to make changes in the midst of a floor debate.

During the 106th Congress, sponsors of the victims' rights amendment tried to make modifications to that proposal during the floor debate, and ultimately, the motion to proceed to that constitutional amendment was withdrawn. I believe that is the course we should follow here today. We either should vote on this resolution without amendments or withdraw this motion to proceed. If this motion is not withdrawn, I urge my colleagues to vote against it.

If Senator Lautenberg is speaking 15 minutes, I will speak for 10 or 15 minutes, if we want to go back and forth.

If you support a mother and father for every child, you are a hater. If you believe men and women for 5,000 years have bonded together in marriage, you are a gay basher. Marriage is hate. Marriage is a stain. Marriage is an evil thing.

That is what we hear. People who stand for traditional marriage are haters, they are bashers, they are mean spirited, they are intolerant. They are all these awful things. That would be the only reason we would come here is because we hate. It is because we are intolerant. It is because we want to hold people down, restrict their rights. That would be the only reason anyone could possibly come forward and argue that children need moms and dads.

Or is it the only reason? Isn't there a whole body of evidence out there, of 5,000 years of civilization, that shows as plain as this piece of paper I am holding up that children need mothers and fathers? That the basic unit of any successful society is moms and dads coming together to raise children?

Imagine what our Founders would say today, in a Constitutional Convention--which, by the way I suggest to the Senator from New Jersey this bill does not call for--that anyone who would come forward and suggest that holding marriage should be between a man and a woman is doing something that is hateful, something that is against the basic principles of equality within our Constitution.

The Senator from New Jersey said there is no room for debate on morality here on the floor of the Senate. It is up to the people to make this decision. I wish it were up to the people to make this decision. The Senator from New Jersey knows the people are not going to be able to make this decision. In fact, the people are being frozen out of this decision. They are being frozen out by State courts--I would argue, soon to be Federal courts. These are people who are not elected, people who are not accountable, people who are not democratic, but they are elitists dictating what they believe their world view should be for America.

The only way for the people to decide, I suggest to the Senator from New Jersey, is exactly the process we have before us. It is the only way for the people to decide. Leave it to the people. It is a great mantra. Leave it to the States. What those who suggest that we leave it to the States are suggesting is to leave it to the State courts. That has always been the secret weapon of those who want to change our culture and change our laws without going through the process most of us think we have to go through to do that.

See, most people who are listening to my voice right now think that to change a law in America you actually have to get popular support for it, that you have to go before your legislature and petition your government. But, no, the Senator from New Jersey figured out a long time ago, as have many others who agree with his position, that the way you accomplish these social transformations that fight against this evil, hateful culture that believes in moms and dads and children being raised in stable families--the way you do that is you get people on these courts who can then dictate to the rest of us how we now shall live.

You have that supported and orchestrated through a variety of different ways, from colleges and universities to the media. Anyone who speaks out against this political thought is a hater. Anyone who speaks out for traditional truth, for truth that has been established in Biblical times, through natural law and a whole host of other cultures, in fact every civilization in the history of man--if you stand for that truth that was accepted by all for centuries, for millennia, you are a hater. You are someone who wants to oppress people.

I am willing to come here and debate the substance of what we are doing. It is an important debate: What will happen to marriage if we do nothing? That is an important debate. We should have that debate. But I am not suggesting the Senator from New Jersey or anybody else who comes here to defend a change in traditional marriage is doing so because they hate mothers and fathers, because they hate traditional marriage. I do not ascribe evil thoughts to them, nor should they to us.

There is the incredible intolerance of those who argue for tolerance.

You see, tolerance means you must agree with me and how I feel about an issue, and if you do not, you are intolerant. Someone who supports traditional values is by definition intolerant because they do not want me to be able to do whatever I want to do.

I never thought that was the definition of tolerance. I didn't think tolerance meant any individual should be able to do everything they want irrespective of the consequence to anybody else. I will check the definition. I don't think that is what tolerance means.

When we change the definition of something so central to the culture of any society--and that is what marriage is and what family is--it has profound consequences on children and thereby on the next generation.

I am not just making this up. It is real. It is so real it has been a given forever. I imagine this has been a given forever. All of a sudden, now something that is a given, that is a truth of every major religion I am aware of, from natural law to philosophy, all of this given truth is now seen as pure animus, hatred. But it is not.

This constitutional amendment is based on a sincere caring for children, for family, for the future of this country.

The Senator from New Jersey suggested that conservatives should be for States rights and that we want to shrink government. Let me assure you, if we do not stop the change of the definition of traditional marriage, if we let marriage be just a social convention without meaning or without significance, we will shrink government because we have seen where marriage becomes out of favor--whether it is the Netherlands or Scandinavia, which I will talk about in a moment, or whether it is subcultures within this country in which marriage is seen as an out-of-date convention. In those cultures, children suffer. In those cultures, people do not get married. In those cultures, children are born out of wedlock and do not see their fathers and in many cases their mothers. Society dies.

You can say I am a hater, but I will argue that I am a lover. I am a lover of traditional family and children who deserve the right to have a mother and a father. Don't we want that? Is there anyone in the U.S. Senate who will stand up and argue that children don't have a right to a mom and a dad; that our society shouldn't be saying to all people that moms and dads are the best, an ideal, and what we should strive for? When we say that marriage is not that, then we say that children don't deserve that. Let me assure you they will not get that.

I will give you a couple of examples. The most dramatic is in the Netherlands. Senators Cornyn and Brownback and others have talked about it. But this is a country where marriage was a very stable aspect of their culture. They had the highest marriage rate and the lowest divorce rate in Europe. They had the lowest out-of-wedlock birth rate in Europe--until what? Until a social movement began to change the definition of marriage. You can say a lot of other things happened in Europe during that time, true. But the Netherlands has always been, interestingly enough, the country that was able to dam the tide, stem the tide and preserve the traditional family until they began the process of changing the definition of marriage to expand it.

Look at what happened over that period of time: A straight and rapid descent in the number of people getting married and, not surprisingly, a rapid assent in the children being born out of wedlock.

Is this what is best for children? Is this an argument of a hater? Is this an argument of someone who is intolerant or is this an argument of someone who believes that children deserve what is the ideal for our society?

What has happened in those countries that have allowed people of the same sex to get married? Sweden allowed same-sex unions. There are 8 million people in Sweden. How many same-sex unions? There were 749. Is it worth it that now 60 percent of first-born children born in Sweden are born out of wedlock? Is this worth it, 749?

By the way, the breakup rate of those marriages is two to three times what it is in traditional marriage. Is it worth it?

I ask kids today what marriage is about. For the longest time, when I asked them what marriage is about, they always answered it is about the love of two people. Look at what Hollywood said about marriage. If you look at what leaders in this country say about marriage, maybe that is what we think it is. You look at the pop stars and celebrities, and that is certainly what it is today. It certainly isn't about families and kids.

What are we telling our children? Is marriage just about affirming the love of two people? I can assure you that is the motive behind it. It is about affirmation of lifestyle, it is about affirmation of desires. Marriage and family is more than that. Principally, marriage and family has been held up not as an affirmation to make you feel good about who you are or who you love, but it is about the selfless giving for the purpose of continuing. It is about selflessness, not selfishness. It is not about me all the time. This is a society that is so wrapped up in ``me.'' Make me feel good, make me affirmed--me, me, me. What about kids? What about the future? The greatest generation of America was the greatest generation of America. Why? Because they were giving of themselves for something beyond themselves.

The greatest generation that started the baby boom was a generation that understood what family was all about.

A young man walked up to me a year and a half ago in Wichita, KS, and handed me this bracelet, and I have worn it every day since. He said this bracelet describes what family is. That is what it is--f-a-m-i-l- y. It says it means family. Forget about me; I love you.

Is that the kind of family we are debating today?

There is a reason we are here. It is not because we hate anybody. It is not because we don't respect anybody. It is not because we don't dignify their worth and value as a person. It is because there is a group of people who are trying to change the definition that is central to the future of this country.

That is why we are here. We didn't pick this fight. We didn't start this battle. They went to the courts, not to the people. They went to the few elitists, and on of the most elitist liberal places in the world, Boston, MA, and said, you, the elite of the east coast, Northeastern United States of America, you take your isolated values and then sweep them across this country. They didn't go to Omaha, NE. They didn't go to Peoria, IL. They go to San Francisco, to Seattle, to Boston, and to New York, and they impose the values across America.

That is not democracy. That is not allowing the people of Baltimore, the people of Reno, the people of San Antonio, the people of Providence, the people of Pittsburgh to speak.

We have a right to speak. The only way we can do that is through the process we have before us, article V of the Constitution, which says we have a right to amend the Constitution when things go too far. And things are going too far. I ask my colleagues to give the people a chance to speak.

I yield the floor.

Will the Senator from Alabama yield for a question?

I have been away for a few hours, running around the Hill, which we tend to do. I want to ask the Senator from Alabama or the Senator from Colorado, has anyone today or in the past 3 days come to the floor of the Senate and announced their support for a redefinition of traditional marriage?

I have not read any article in a publication or heard any radio or seen any television show or report thereof where anyone in this Chamber has said anything but that they support the definition of traditional marriage.

Mr. President, do my colleagues have any comments?

Yet we have heard on the floor today, have we not, that those of us who support a definition with which they agree, that Members who have criticized us for offering this, are intolerant, hateful, and gay bashers for proposing language which they say they support; is that an accurate description of what has gone on here today?

Mr. President, does the Senator from Colorado wish to comment on Members who oppose this constitutional amendment yet support the language of it, which I find to be somewhat remarkable, but they support the definition of traditional marriage and have stated so, yet accuse those of us who would like to put it in law, in a constitutional amendment, as being purveyors of hate and intolerance; is that not what has happened today on the floor of the Senate?

I would like to pick up on what the Senator from Colorado said, which is, I know in my office, we have provisions in our office manual which actually prohibit any discrimination on the basis of race, sex, national origin, or sexual preference. We have those provisions in our office manual. And we do not discriminate in hiring.

I believe people can make contributions and should make contributions

and should be able to contribute to our society, particularly here on the Hill. I know, as has been reported widely in the press, there are a lot of people in this category on both sides of the aisle who are homosexuals who make great contributions to this Chamber. No one wants to deny them their ability to live out their dreams. But as I think the Senator from Colorado said, it is important for us to understand that this debate is not about limiting anybody's choices, except children, because that is really what this debate is about.

If we change the definition of marriage, we end up limiting the choices of children and having the right to have a mother or father. I know this is on the time of the Senator from Alabama. I wanted to make sure I had not missed anything.

Mr. President, I return the thanks to the Senator from Colorado for his willingness to step forward and introduce this legislation. He has carried it with a firmness of purpose and a gentle touch, which is his way, in the way of bringing this issue squarely to the Senate before the American public. He is to be congratulated.

The leader is in the Senate. I thank him for agreeing to bring this bill before the Senate, to have a vote on this constitutional amendment in the Senate, and to have this first public debate about the institution of marriage and the attempt to redefine that institution by the courts.

If I can, I want to start from scratch to answer the question that many have offered today on the other side of the aisle, which is, Why are we here?

Some have suggested we are here because we hate certain people. Some suggest we are here because we are politically motivated to try to rally troops before the election. Some suggest we are here because we want to change the subject to something other than what we have been debating for the last several months in the Senate.

We suggest we are here because we want to preserve an institution that has served civilization well for 5,000 years. While that institution has been shaken, that institution has fissures in the foundation; it is still an institution worth preserving. It is an institution worth rebuilding. It is an institution worth fixing the cracks in that foundation. It is an institution worth shoring up and strengthening that foundation.

It is not an institution that we need to say, because it is broken, because the institution of marriage is not what it once was--I think everyone will accept in this body, those who are fighting for traditional marriage, will say no, the institution of marriage is not what it once was. It certainly has been the glue that has held the family together. Every culture, every civilization known to man, has had an institution of marriage of some bright, ritual symbol that has shown the monogamous bond between a man and a woman. Why? For the purpose of continuing on that civilization and a recognition that children need moms and dads and moms and dads who are in committed relationships is the ideal.

I look at my kids. I am blessed to have seven children, six of which we are raising. I know my children feel safer, feel more secure, more confident, knowing their mom and dad are there and are supportive and loving.

There are lots of people in our society who were raised by single parents who feel that love and support from that single parent. Those single parents in many cases do extraordinary jobs. But even if you talk to single parents and kids raised by single parents and you ask them, wouldn't it have been better, the ideal, if mom and dad were joined together in a healthy marriage, raising you in a safe and secure and stable home? The answer is, invariably, yes.

What we are here to debate is not an abstract concept of what marriage is or what it should be, but it is a real social benefit. I cannot think of anything more we can do--and the Senator from Kansas talked about this--there is nothing more we have focused in on in the last several years than trying to shore up and affirm marriage. Whether it is the marriage penalty or the marriage initiative the President put forward in the welfare bill, the idea from all the social science data is there are enormous benefits to marriage.

We had a hearing in the Finance Committee, on which I serve. The hearing brought forth witnesses from the left and right. We asked them a series of questions about marriage and its benefits. There was a woman representing the Democratic side of the aisle. She made the argument that raising children by parents in an alternative form is just as good as being raised by a mother and a father in a loving, stable relationship. That argument is over. Yes, it can happen, but it is not the ideal. It is not best for children across the board.

The children do better in school. They have less dropouts, fewer emotional and behavioral problems, less substance abuse, less abuse and neglect, less criminal activity, less early sexual activities, and fewer out-of-wedlock births. And more. The evidence presented was dumped on us overwhelming, the benefits of marriage, irrespective of social or economic condition, the benefits of having a mother and a father contributing their unique nature to the nature of that child.

The evidence is in. The jury is in. Marriage is good. Marriage is a public-policy-desirable goal. Why? Because it benefits children but it also benefits mothers and fathers.

I read yesterday, and I will repeat today, a listing of five things in the sense of the purpose of marriage, what it does to benefit the culture.

No. 1, the bonding between men and women that ensures their cooperation for the common good.

By the way, this article was written by two professors in Canada, a woman professor who is straight and a homosexual man. They wrote this article in support of traditional marriage in opposition to a redefinition of traditional marriage to include same-sex couples. They did so based purely on sociological data, on psychological data, on the overwhelming evidence of the public good of traditional marriage.

No. 1, I mentioned, the important bond between men and women.

No. 2, the birth and rearing of children, at least to the extent necessary for preserving and fostering society and culturally approved ways.

No. 3, bonding between men and children so men are likely to become active participants in family life.

I will stop to focus on that for a minute. We have an initiative in the President's welfare bill, the Father's Initiative, that Senator Bayh and I have championed, responsible fatherhood. Why? Because in our culture today there are crosscurrents about what fatherhood means. In certain subcultures, fatherhood means having children, period. What are the effects in that subculture of the role of the father being simply biological and nothing more?

When fathers are absent versus when fathers are involved: Fathers absent, two times more likely to abuse drugs; fathers absent, two times more likely to be abused; two times more likely to become involved in a crime; fathers absent, three times more likely to fail in school; three times more likely to commit suicide; and five times more likely to be in poverty.

The evidence is in. There is a role for society to encourage fathers to be more

than biological fathers, but to be involved in the rearing of that child, preferably in a committed relationship with the mother. These numbers all go up if you have committed, stable, low-conflict relationships between the mother and the father.

So there is a role for government, as a public policy, for the benefit of children and the community in which they live because these children just do not, through this activity, affect themselves, do they? No, no. When they commit crimes or when they abuse drugs or when they commit suicide or when they live in poverty, that does not just stay with them. So there is a real public policy objective in promoting stable marriages and fatherhood.

No. 4, some healthy form of masculine identity. What does that mean? Well, they go on--which is based on the need for at least one distinctive, necessary, and publicly valued contribution to society. It is especially important today because two other cross-definitions of ``manhood,'' which is the definition of manhood being ``provider'' and ``protector,'' are no longer distinctive now that women have assumed those roles in society.

So what are they saying here? They are saying that men have an identity crisis. The traditional role of the man is no longer the traditional role of the man. You say: Well, what's the big deal? Everybody is equal.

When you rob someone of a role they believe they have, as society in some degree has, then you have a belief among large segments of society that they have no role; they do not have to provide; they do not have to protect; they do not have to nurture. That is not the role anymore for men in society. It simply is to pursue selfish goals, but they are not needed anymore.

We can all go back about the genesis of this and the movement that caused it, but the bottom line is, it is real, and it is reflected in these numbers. So it is important for society to say to men that marriage is good and expected and is healthy and is optimal, and to have laws that say that dropping specimens off at a sperm bank is not fatherhood, but committed relationships with the mother of your children in a marriage that gives you and her and your children security is expected.

Now, I know there are a lot of cultures that do not support that, subcultures in America, but the legal, statutory reflection of the culture should be that ideal. Our laws should reflect the ideal of what is best for that man, for that woman, and for those children.

No. 5, the transformation of adolescents into sexually responsible adults; that is, young men and women who are ready for marriage and to begin a new cycle. This relates the key contributions that men and women make to the upbringing of young men and young women.

As the father of boys and girls, I make different contributions as a father to my girls than I do to my boys. They look at me different. I am different in their minds, and I represent different things that will have an effect on them in their ability to have successful relationships in the future. That is real.

Now, we can all play games that people can substitute, that it does not matter whether it is two men or two women or one man or one woman or no women or no men or whatever, but the fact is, there is a difference. We tend to try to deny that. It is politically correct to say there is not a difference, but the fact is that fathers and mothers contribute different things to children.

So why did I go through all this? It is important to understand what we are talking about here is very important, and what is being talked about in the courts across America is destroying this very important institution to the American society--to any society.

Now, some have suggested this is not a real assault, that it is trumped up for political purposes. Two of the speakers, remarkably-- Senator Clinton and Senator Dayton--both of them said--I will quote Senator Clinton where she says: The Defense of Marriage Act, known as DOMA, has not even been challenged at the Federal level. That is a quote from her statement today. For the record, false. False. Senator Dayton made a similar comment. I think others have made similar comments, except I have the transcripts of these two Senators. False. I submit for the record that there are pleadings in Florida and pleadings in Washington State challenging the constitutionality of the Defense of Marriage Act.

So the idea that the Defense of Marriage Act is not under assault is not true. The Senator from Colorado a few minutes ago laid out the State-by-State challenges that are going on, some with respect to the Massachusetts marriages, some with respect to the Oregon marriages, some with respect to the New York marriages, some with respect to the California marriages, and we go on and on. And there will be more.

I think there are challenges in 46 States to traditional marriage as being unconstitutional. So to suggest that 46 States--whether it is civil unions or marriages--are being challenged by same-sex couples or whether it is two States where the Defense of Marriage Act is being challenged, that somehow or other that is not a serious threat when one State has already determined that there is a constitutional basis, and in writing the decision referred to a U.S. Supreme Court case decided last year--Lawrence v. Texas--in making the determination that you could not discriminate against same-sex couples with respect to marriage, and we do not believe here that this is a serious assault? What do we need? Do we need all the States and the Supreme Court to decide this issue, and then we say: OK, now we decide. Well, the Senator from New York said her father used to refer to it as closing the barn door after the horse has left.

By the way, this is a remarkably similar strategy to that which was used in the 1950s and 1960s with respect to the issue of abortion. What happened in that case was a little different. Instead of the courts imposing abortion on the States--although that may have been done; I am just not aware of, maybe as well as I should be, the history--but I do know certain legislatures throughout the country began changing the statutes with respect to abortion, which, of course, 50, 60 years ago was basically illegal in every State in the country. Over time, just a few States changed their law. This created conflicts between the States as to how they were going to deal with this issue.

The same thing is happening here State by State. At a minimum, there will be more States because there are certainly a lot of liberal justices of supreme courts in the various States around the country. There will be more States that will ``find'' this constitutional right either within the Federal or State constitution or both.

There will be another State and another State that will accept a redefinition of marriage. And the conflicts that will result as a result of that are reflective of the one case I just submitted, which is the Washington State case. In the Washington State case, a lesbian couple married in Canada where they have such laws and came to Washington State and filed bankruptcy. So they wanted distribution of assets based on marriage. And the State of Washington just said: We have to figure out whether or not this is constitutional, whether we have to accept this or whether the Defense of Marriage Act bars us from doing so.

We will get this in State after State after State, and there will be conflicts. There will be court decisions all over the place. The Supreme Court will have to come in and say: We didn't want to do this. We feel our hand is forced--just like Roe v. Wade--that this is an issue that cannot have this kind of disparity of unequal treatment between States, and we will then settle it for everybody, which will, of course, mean a complete redefinition of marriage. You don't have to have a crystal ball to figure this one out.

We can sit back. This is the great, this is the classic just sit back; say what you believe the public wants to hear; profess your allegiance to traditional values, and then let someone else do the dirty work for you. And it will happen. It will happen. Maybe more dramatically, the court may say we are going to take this on and do it ourselves. There seems to be a majority in the court to do that. But even if they are not aggressive, eventually it is a done deal.

And everyone will come out here and profess: No, the States can deal with it. The States can handle this. We are for States rights. To hear the Senator

from Massachusetts talk about States rights, I thought maybe the ceiling would fall. Issue after issue, time after time, Members on that side of the aisle vote continually to take power from the States, continually to federalize every issue.

But when it comes to something as irrelevant, something as unimportant as the family and marriage, no, no, we can't deal with this. No, this is in the general State purview, as if passing major education reform isn't a State issue. That is a State issue. As if doing welfare isn't a State issue. State issue. Transportation, State issue. Health care, welfare, all of these issues which we spend most of our time and an increasing portion of our money on are all under the purview, under this Constitution, of the States, and we have no problem dictating to the States how to run their schools, how to run their hospitals, how to run their welfare departments. But not when it comes to protecting this fragile institution, this institution that is so out of favor within the popular culture.

Listen to the music. Do you hear affirming things about the treatment of women in the music in the popular culture today? Do you hear songs about commitment and marriage in the popular culture today? Do you see movies reaffirming the traditional role of fathers raising their children and responsible actions on the part of parents and would-be parents? This is an institution that is swimming against a toxic tide of popular culture that wants to just drown it.

As the justices from Massachusetts said, speaking for our culture, I believe, marriage is a stain on our laws that must be eradicated. That is how Hollywood views marriage. That is how the music industry views marriage. That is how the media views marriage.

What are they writing about here? Are they writing about this marriage debate? No, they are writing about the conflict between Republicans in trying to get a vote on the floor of the Senate. Give me a break. One AP reporter writes this story, and he is a decent man. I know he can't be this uninformed.

What are we trying to accomplish on the floor of the Senate? We have two amendments on this side of the aisle. It has not been unknown that there have been actually as many as three amendments on this side of the aisle. This is not unknown to anybody. What do we want to do? Well, we can't put forward both so we put forward one, the one that we believe is our best, our optimal solution. By the way, that is done with frequency in the U.S. Senate, where you come forward with what you want to accomplish. And if you can't get that done, what do you do? You offer plan B, what you think will get something accomplished but not as much as you want.

And so we wanted to offer plan A. And if plan A didn't work--A, Senator Allard's amendment--then we would offer plan B, which happened to be Gordon Smith's amendment.

That is not confusion or division. It is simply a time-tested, age- old strategy in every dealing that I am aware of in life, which is you try to get as much as you can. And if you can't, you take plan B and try to get as much as you can there. But that is not what people write. They don't want to write about the substance of the marriage debate, which by and large has not really been engaged in here.

The substance on the other side of the aisle when it comes to this issue is that, No. 1, it is political. No. 2, we should be talking about homeland security. I am for homeland security. But there isn't enough money in the world that you can spend to secure the home more than marriage. You want to invest in homeland security? You invest in marriage. You invest in the stability of the family. That is what this amendment is.

I hear from speaker after speaker: There are more important things to debate on the floor of the Senate than the family. Think about that. There are more important things to debate: homeland security, spending more money, which, by the way, won't be spent until October 1 of next year. Spending a few billion more dollars is more important than preserving the traditional family in America. No, they haven't been debating the substance.

I asked the Senator from Alabama earlier, I don't believe anybody has come forward and said they are not for traditional marriage. I think I am wrong. I was handed Senator Kennedy's speech.

Senator Kennedy said: I happen to be someone that supports the court decision in Massachusetts. I am proud of them. I happen to support the court decision in Massachusetts. I am proud that four justices redefined and forced the Massachusetts legislature to rewrite their laws, and they are the only ones who are allowed to do that, forced the legislature to rewrite their laws with respect to marriage. I am proud of them.

Do we hear any comment about this agenda? What is this agenda? I am proud that four unelected judges can usurp the authority of the legislative branch and roll them and force them to do something that the people of Massachusetts don't want. I am proud of them.

I don't think John Adams would have said the same thing. I don't think Jefferson or Madison would have. One of my colleagues referred to Madison, that he would be with Madison. I don't think Madison would see it as the role of judges to rewrite the Constitution when they have a hankering to do so. I think Mr. Madison would have a big-time problem with what he would see as an abuse of article V. Article V is an amendment of the constitutional process. Nowhere in there do I see Mr. Madison talking about judges changing the Constitution when they feel like it. But, you see, as the Senator from New York, Senator Clinton said, ``I am in agreement that the Constitution is a living and working accomplishment.''

My question is, who is doing the living? You see, I thought from article V that the living part was those of us here in the legislature, those of us across the States who would determine when it is appropriate to institute new rights or obligations in the Constitution. That is what I thought this living, dynamic document was. But that is not what those who oppose this amendment believe the Constitution is, no. The living that is going on is not the American public doing the living. Oh, no. It is a few hand-picked judges who have the right to breathe life into the Constitution. See, they are the ones who get to change the Constitution, without going through this complex, sort of long, drawn out, tedious, expensive process of getting two-thirds of the votes here in the Senate, and two-thirds of the votes in the House, and three-quarters of the State legislatures.

By the way, in responding to an earlier comment of a colleague on this side, it is not three-quarters of the United States, it is three- quarters of the state legislatures by a majority vote.

By the way, from everything I have seen, and from every poll I have seen across America, those votes are probably there. The problem here is in this great institution that is supposed to be a reflection of American values, 99 to 1, we are all for traditional marriage. But it is like a mirror in this case because it is not real. You can sort of look at that reflection and try to touch it, but it is not real, it is only a reflection because they are not voting that way.

If you want to protect traditional marriage, you should vote for cloture and for one of these constitutional amendments that will be offered. The Hippocratic oath says, ``First, do no harm.'' My question to those who are going to vote ``no'' tomorrow is, what harm do you believe a constitutional amendment does to the institution of marriage, which you say you support? You support the definition within this constitutional amendment that marriage is between one man and one woman. All but one Senator said they support that. There may be more who don't. I suspect maybe a lot more, but I don't know. Probably a few more are right now sort of staying low, saying all the right things, what the polls indicate is popular, and have their fingers crossed and are thinking let this issue pass; let this issue pass by and let it quiet down, and then let the courts do what we want them to do. Then we will get what we need.

But if they don't feel that way, if they are truly in support of traditional marriage, which many profess they are--and I argue I would probably agree most are in favor of traditional marriage--then what harm do we do by putting language into our Constitution

to protect that institution which everybody says they are for? What harm is done? Do we harm the Constitution? Do we cheapen the Constitution?

Someone suggested this doesn't rise to the level of a constitutional amendment. I remind people what the last constitutional amendment was. It is fun reading. It is always good to pick up the Constitution. I know Senator Byrd carries one and hangs out with it all the time. I will read the 27th amendment:

No law varying the compensation for the services of

Senators and Representatives shall take effect until an

election of Representatives shall have intervened.

Congress cannot get pay raises until after the election. Big deal. By the way, I know one Senator said, ``I am going to stand with James Madison.'' That is what the Senator from Arizona said. The 27th amendment--do you know what it is called? The Madison amendment. James Madison, the architect of the Constitution, had an amendment that said Congresses cannot receive pay raises. A big, weighty issue. The fate of the country hangs in the balance. ``I will stand with James Madison.'' Do you know what Madison said? If you believe enough in something, you put it in the Constitution if that is the only way you fix the problem. I don't believe anyone can look at the legal state of play in this country and say there is any other real option.

A philosopher named Christopher Lash said: ``Every day we get up and we tell ourselves lies so we can live.'' What did he mean by that? Well, there are certain things we have to tell ourselves so we can go on and do what we want to do, certain truths we have to ignore so we can go on and live our lives.

There are all these people dying and suffering in Africa from AIDS, and we tell ourselves there is not much I can do about that so I will go on with my day. There are 1.2 million children dying from abortions in this country. We tell ourselves that is a tragedy, but there is nothing I can do, so I can go on and have my breakfast. We all do it. I do it. Everybody does it. We tell ourselves little lies so we can feel comfortable with the decisions we make to go on with the life we want to live and make the decisions that make us feel comfortable.

The Senate tomorrow is going to tell itself a little lie--that we don't need to do this, that families will be OK without us, and the States can handle the issue. Now, some will say they don't believe that is a little lie. They will say they disagree with that. We can all rationalize whatever decision we want to make. We can all make our case. In the history books, when this time is written about, we will be able to make our case. We will be able to say, you know, had I known this was going to happen, I would have voted differently. I would have stood with Mr. Madison and voted for that amendment. But how was I to know? How was I to know this was the beginning of the end of marriage, and the beginning of the end of the family in America, and the beginning of the end of the freedom we hold in this country so dear, where Government doesn't run and have to take care of every need because nobody else is around to do it.

If you look at the socialist countries that have gone in the direction of destruction of the family, you only need to look at the imposition and heavy weight of government. Why? Because there is no one there to pick up the pieces. You can say, if I had known, if I had only known. Every day we get up and tell ourselves lies, so we can live. The problem is this lie hurts the future lives of millions of children in America. And they are going to have to live with the consequences of the lie you tell.

We have an opportunity to do something so simple, so basic, so natural: Simply affirm what this country has known for hundreds of years, what the Western World has known since its inception, and simply put in a document that represents the best of America the ideal that children deserve moms and dads; that the glue of the family, marriage, is worth a special place. Do we not believe that marriage, that glue that binds men and women and children together, deserves a special place right next to limiting pay raises of Members of Congress? Is that a special enough place? Is it not a special enough place for something that we know is essential for the future of America?

We debate a lot of important issues here, but there is nothing-- nothing--more important than the future survival of this country. That is what we are here for. We took that oath of office. Why? To preserve and protect. That is our job. We have other jobs outside this Chamber, but within this Chamber our job is the preservation of these United States.

I do not see how anyone can possibly imagine a whole nation without whole families. Yet we will choose tomorrow to risk everything. Think about this. We will choose tomorrow to risk everything. Why? What is worth this risk? What is worth this experiment in sociology heretofore unseen? What is worth that much?

I ask the silent chairs on the other side of the aisle: What is worth this much not to give marriage a chance? As broken and as battered and as shattered as the institution is, let's use this opportunity, in a time of horrible, divisive politics, to band together and say there is one thing on which we can agree: that men and women should bind together to have children and raise them in stable families. Can we at least agree on that?

What will the answer be? What will all of God's children say tomorrow? No. No. No, I can't go that far; sorry, got too many other things to worry about; too political an issue; too divisive an issue; too intolerant an issue; just trying to bash people; you don't really care about families; this is simply about politics. The lies we tell ourselves every day just so we can live.

I come here not because I want to win an election, not because I want to bash anybody or hurt anybody. I come because this is good for America. This is the foundation of everything that makes America great, and it is worth saving. Give it a chance. Don't snuff out this candle that is just barely keeping the light on. Give it a chance. I accept the fact that it is in trouble. I accept the fact that we have darn near blown it, but don't use that as an excuse to do nothing. This is not about hate. This is about giving our children the best chance of having a bright tomorrow.

Mr. President, I yield the floor.

That is a great question. I say to the Senator from Alabama that going back to Madison, Adams, and the Massachusetts Constitution talked about the importance of a balance of powers, a checks and balances; that if one branch of the Government were to become too powerful then our Republic is in danger. Democracy itself is in danger.

I think what the Senator from Alabama is referring to is the judiciary over the last several years, as a result of the feeling within certainly the liberal branch of the judiciary, that they can take on the role of a legislature in either passing laws in the form of judicial opinions or forcing the legislature to pass laws as a result of constitutional edict. It is getting to the point where there are these three branches of Government that all sort of operate under the Constitution, and we are supposed to be able to oversee each other. One might want to make the argument that maybe we are not doing a particularly good job of oversight; that we are not doing a very good job of checking the judiciary in its repeated attempt now to usurp power away from the people's branch.

The people's branch is not the judiciary. It is not the executive. It is us. We are the ones who stand for election on a regular basis. We are the ones who are responsible to a local constituency.

We are the ones who are in closest touch with what the people would like to see done. The judiciary is probably the most removed because they are completely unelected.

Yes.

It is one of the most disputed and argued--we have committees that argue over jurisdiction just between where bills are referred. We all know this in all of our lives, when there is an area of authority, that area of authority is protected, not just because it is one's particular area of authority but one knows what they do in their job, particularly in the area of the legislature and of government, sets a precedent for how future people will do their job. If one gives up power, it is going to be hard for someone to get back when it may be necessary for them to do so.

So we hold our power or fight for our rights not just because we want to exercise that power but because it is important institutionally that the power rest in the proper place.

The answer to that is clearly yes. In fact, the Senator is a much better lawyer than I ever was, and I say that to the Senator from Alabama as someone who was a prosecutor and a very accomplished lawyer. I made it up to a fourth year associate, so I just started on my legal career and opted to do something different, and that was run for Congress.

I recall when Madison wrote this Constitution about checks and balances, I am not sure he envisioned the role of the judiciary as we see it today. Marbury v. Madison sort of evolved as to what the role of the courts was in interpreting the Constitution, but clearly he gave the authority to change the Constitution not to the courts. He gave the authority to change and create rights within the Constitution to the Congress and to the States, as a check on the Congress, to make sure the States would go along with what we wanted to do.

So to change this important document, this template for the Government that we have, he wanted to create a very high bar, wanted to make sure there was broad public consensus before we did something to affect this very important document. Now this is being used as an excuse not to change it, when judges do it every day. Every day a judge will attempt to expand, usually expand in some form or another, the meaning by adapting it to contemporary standards or contemporary jurisprudence.

I don't know what that means, but it basically means I am the judge, I am the law, and I can do what I want.

I would just say that checks and balances work as long as there is truly a balance. I think what we have is some people today in our judiciary, because of the activist judges, who are now saying we are all going to play by these rules, all branches of Government. Here is the game. Everybody comes to the poker table and we are going to play the game of governing the United States of America. And in the middle of the game, the court can say: I am changing the rules to my favor, so I win.

In a sense, if you think about it, when the Court, the Supreme Court, rules, they win. The only way we can change that is through this rather complex procedure laid out in article V of the Constitution, which is not an easy thing to do. In a sense, the Court has figured out that the ability for Congress to check them is very limited. As a result, they are feeling more and more empowered to project their will on society.

That would be, first, I think, dangerous, period. But it worries me even more because the Supreme Court that sits right here in Washington, DC, is certainly not what I would call Main Street America, certainly not what I would call a community that shares the values of this metropolitan area, that shares the values of the heartland of America.

I remember a good friend of mine telling me that postwar Germany was concerned about centralizing government in its major cities, Berlin or Bonn. So they did something rather unusual. They located their supreme judicial court not in their capital city or in their biggest city, they located it in the equivalent of Peoria, out in the country, where justices do not hobnob with the liberal elite that govern the nation. Either through governance-wise or governing media-wise. But they have to live and work with the common, ordinary people out across the great hills of Germany--and in our case the Great Plains of the United States.

But we don't have that here. We have this constitutional court sitting right across the street in a town where the influences are not neutral. That is why I believe you see that every single Justice--bar a couple on this Court--once they get on the Court, tend to assimilate with this town and with the prevailing view in this town, which is big government, which is government knows best, and government can do all, and which is, from the culture standpoint, not exactly where I would say Mobile, AL, is, or Pittsburgh, PA, is. Where in Colorado?

Mr. President, I think under the previous consent order we would now go to 30 minutes on this side and then over to the Senator from Illinois for the next 30 minutes. We may, in fact, depending on who shows up, try to divide our 30 minutes among several Senators. I ask unanimous consent that we be allowed to do so in case there is any doubt.

Mr. President, I am delighted that we are finally beginning to have a real debate on the floor of the Senate on the importance of preserving traditional marriage. Up until this point, I am sorry to say, we really hadn't had much of a debate because our attempts to raise this issue, starting on Friday, had been met mainly with silence from the other side. But we have had a number of Senators--Senators Boxer, Reid, now Feingold--who have spoken and stated their objections. I would like to respond briefly. I believe then that Mr. Inhofe, the Senator from Oklahoma, will be here. I will certainly turn to him.

First of all, we are told by the distinguished Democratic whip that Republicans have raised a political issue. I would suggest to you that when judges in Massachusetts and elsewhere threaten to mandate same-sex marriage on the people of this country without the opportunity for the people of this country or their elected representatives to cast a vote or to have a voice in that decision, that is not a vote in favor of democratic government, one preserved by our Constitution that recognizes the sovereignty of a free people, not of a few life-tenured judges or perhaps judges who none of us have had a chance to vote on or to express any disapproval of in terms of judges from Massachusetts who have radically redefined the institution of marriage in that State.

Contrary to the hopeful expressions by some of my colleagues and perhaps others in the media, this is not an issue that can just be confined to one State, the State of Massachusetts, because, in fact, same-sex couples have gone to that State and have taken advantage of this new law and then moved back to their States of residence, 46 different States. And then, of course, we understand the process. And then a number

of those have, in turn, filed lawsuits in their home States seeking to force legal recognition on their same-sex marriage that was conducted in Massachusetts in their home State.

This is not an isolated event. This is part of a long-term litigation strategy. Indeed, we know that even as long ago as when the Defense of Marriage Act was passed by this body overwhelmingly--I believe it was 85 Senators who voted in favor of it on a bipartisan basis--there were some Senators back then who, of course, didn't vote for it, such as the Senator from Wisconsin, as is certainly his privilege. But we know that others did not vote for it at the time, including Senator Kerry, who said at the time:

DOMA is unconstitutional, unnecessary, and unprecedented.

This is an unconstitutional, unprecedented, unnecessary, and

meanspirited bill.

At the same time, of course, 85 of his colleagues in this body on a bipartisan basis sought to express their confidence in the importance of preserving traditional marriage back then. Then, of course, there were other Senators who made the same expression.

Legal scholars have for some time now, including Laurence Tribe from Harvard Law School, Cass Sunstein, and others, expressed their opinion as a legal matter that the Defense of Marriage Act is unconstitutional, and then we have, most recently, the most recent edition of the Harvard Law Review, which is entitled ``Litigating The Defense of Marriage Act, The Next Battleground For Same-Sex Marriage.'' This literally sets out a roadmap for any lawyer who wants to challenge the preservation of traditional marriage in their State or, indeed, in any State in the United States by seeking a judicial declaration in a court that the Federal Constitution mandates same-sex marriage.

So this is not some political issue that we or the leadership on this side of the aisle dreamed up. This is a debate that has been raging for some time now, at least since 1996, when Senator Kerry, Senator Kennedy, and others expressed on the public record that they believed the Defense of Marriage Act was unconstitutional at the time. They were parroting the statements of legal scholars and others to the same effect.

So this is, in my view, a question of whether we the people have a say. As Abraham Lincoln said, we are a government of the people, by the people, and for the people. But what our opponents on the other side of the aisle and on this issue would say is, look, we have four judges in Massachusetts who have laid down the law in Massachusetts, and there is really nothing you can do about it. The fact is, it has now been exported to 46 other States, and there are approximately 10 lawsuits presently pending to seek to force the recognition of those same-sex marriages in those States, and this is part of a national litigation strategy.

I say to those who think we ought to sit on the sidelines and remain spectators and remain silent, we are not going to remain silent, we are not going to stand still, nor did the Framers of our Constitution contemplate the people standing still when, by virtue of the passage of time and experience, or in this case when judges seek to amend the Constitution under the guise of interpretation, none of the Framers, no part of the Constitution contemplates that the people of this country should just remain silent.

If we want a government of the people, by the people, and for the people, this is an important debate. I want to say something before I defer to the Senator from Oklahoma, who wants to speak, just by way of response--and I will reserve the rest of my remarks for the remaining time we have allotted in this 30-minute timeslot.

The Senator from Nevada, the distinguished Democratic whip, has chastised this side of the aisle, the Republican majority leader, for refusing to accept their offer for an up-or-down vote on the Allard amendment. What he didn't tell you is they stipulated that it must be without any amendments being offered on the floor. In other words, their offer attempted to stifle debate and stifle the right of Senators to offer amendments. They know, as we all know, there are other amendments that have been discussed over the last year or so. I think if we want to have a full, fair, and honest debate, since there are concerns there wasn't adequate deliberation in the Judiciary Committee, this is the place to have it. We ought not to try to stifle debate or the right of any Senator to offer an appropriate amendment.

At this point, I will reserve the remainder of our allotted time and ask that the Senator from Oklahoma be recognized.

Mr. President, I will be glad to do as the Democratic whip requests and check with the majority leader about the time arrangements.

Mr. President, I am elated that we are beginning to see engagement on this important issue by our colleagues on the other side of the aisle. I am always impressed with how articulate and forceful an advocate our colleagues on the other side are, particularly the two Senators who have spoken so far this afternoon, Senator Feingold and Senator Durbin, with whom I have the privilege of serving on the Senate Judiciary Committee. There are some important answers to the questions he raised. There are good answers that resolve each and every objection that has been raised to the amendment.

First of all, I would like to respond to the rhetorical question both Senator Feingold and earlier Senator Boxer asked. They said: Why can't we let people live their own lives?

This amendment is not about making it impossible for people to live their own lives. Indeed, I agree we should let people live their own lives. Of course, we don't believe at the same time that they should be able to radically redefine the institution of marriage in the process.

From the very beginning of this debate--and I am grateful this has been a civil, respectful debate--we have made it absolutely clear the American people believe in at least two fundamental propositions when it comes to this issue. First and foremost, they believe in the essential dignity and worth of every human being. But at the same time--and this is not a mutually exclusive concept--they believe in the importance of traditional marriage as the most fundamental building block of a stable society and in the best interest of children. I and others on this side are here talking in support of this amendment and encouraging this debate because we believe very strongly that the positive case for traditional marriage must be made and we should not remain mere spectators on the sideline as judges in Massachusetts or anywhere else seek to amend the Constitution without the American people having a voice in the basic laws that govern our institutions or our lives. That is what this debate is all about.

I found it interesting. Again, I have to hand it to the Senator from Illinois. He is a skillful advocate. He must have been one heck of a lawyer practicing in private practice. I bet he won more than his fair share of his cases. But he speaks of our oath to support the Constitution. Certainly, I believe we all have taken an important oath to support the Constitution of laws of the United States. But I would like to direct my colleague's attention to provisions of the Constitution he may have overlooked in that broad generalization he made earlier about supporting the Constitution.

Indeed, one portion of the Constitution provides that ``all legislative powers herein granted shall be vested in a Congress of the United States . . .'' That is Article I, section 1. That is part of the Constitution we swore to uphold. And indeed, under that same Constitution, courts are given only judicial powers, not legislative powers. What we find ourselves having to do in this debate is talk about the abuse of that judicial power, to in essence become a superlegislature and dictate a radical redefinition of the most fundamental institution in our society, the American family. But when courts get it wrong--and indeed, this is part of the genius of our Founding Fathers--the Founding Fathers knew that experience, the passage of time, or perhaps even a runaway judiciary might make it necessary for us to invoke another important part of the Constitution that we are here invoking today. That is Article V of the Constitution.

Indeed, to the best of my count, there have been at least six times when the Congress has amended the Constitution in order to overrule an erroneous constitutional interpretation by the Federal courts. So we make no apologies whatsoever in invoking the entire Constitution and the entire process. We make no apology at not sitting back and letting judges dictate what the rules are that govern our society, our families, and future generations.

Senator Feingold and Senator Durbin were concerned about the fact that this amendment did not go through the Senate Judiciary Committee. Actually, I was a little bit confused about Senator Durbin's position. On the one hand, he said it did not go through the committee. On the other hand, he did concede the fact that there were four hearings of the Senate Judiciary Committee on this issue, starting last September, and the most recent of which was on June 22, 2004, when Governor Romney of Massachusetts appeared before our committee to talk about what he, as the Governor of that State, is doing to try to get a constitutional amendment to overrule the Massachusetts Supreme Court.

So we have had four hearings of the Senate Judiciary Committee. I know there have been at least two other committees of the Senate to consider this issue. It is important to put the concerns that were expressed by Senator Feingold and Senator Durbin in that context.

As far as the language we are debating is concerned, the so-called Allard amendment, that was introduced shortly before, I believe the day before the March 23 hearing we had this year on the Federal marriage amendment. Indeed, he had filed his original amendment--and this clarification was merely that--in November of 2003. So no Member of the Senate should be able to claim, in all fairness, of being surprised by this or being blindsided. Indeed, this is an issue that has been much discussed since actually before but at least since the time in November of 2003, when the Massachusetts Supreme Court first handed down its edict rewriting the Massachusetts Constitution to provide a mandate for same-sex marriage.

Now, there has been some concern expressed--and I will point out that the so-called Smith amendment, to which the Senator from Nevada alluded, is the first sentence of the Allard amendment. So it is impossible for me to understand how they can claim to be surprised by an amendment that is just the first sentence of the two-sentence Allard amendment. Insofar as Senator Smith's position, whether he intends to offer it--and I cannot vouch for what Congress Daily says, but it seems to be pretty reliable--there is a lot of concern--and I am one on this side--that we stifle debate by not permitting a discussion of alternative amendments, especially one that makes up the first sentence of this two-sentence amendment on which we are having the motion to proceed.

So there is no surprise. There is no trickery, no attempt to blindside our colleagues on the other side of the aisle. This is about having a full, fair, and open debate. I think that is what we are doing.

I believe the Senator from Illinois expressed some concerns about the fact that no Federal court has yet mandated same-sex marriage under an interpretation of the U.S. Constitution, and that is true. The fact also is that there are at least four lawsuits currently pending attempting to do exactly that. Indeed, these are the latest lawsuits in a long line of legal opinions rendered by legal scholars, from Laurence Tribe and others, statements by Senator John Kerry and Senator Ted Kennedy as recently as 1996 that the Defense of Marriage Act is unconstitutional.

This language, which I will read from an excerpt out of the Goodridge opinion in Massachusetts--and this is really, to me, very disconcerting. The Massachusetts Supreme Court said:

But neither may the Government, under the guise of

protecting ``traditional'' values, even if they be the

traditional values of the majority, enshrine in law an

invidious discrimination that our Constitution, ``as a

charter of governance for every person properly within its

reach,'' forbids.

In that excerpt, they have in effect defined traditional marriage as invidious discrimination. They went on to say:

For no rational reason, the marriage laws of the

Commonwealth discriminate against a defined class; no amount

of tinkering with language will eradicate that stain.

Here again, they are saying that traditional marriage is a stain on the Constitution, on the laws of the Commonwealth of Massachusetts, and no rational basis for those laws exists. This is language that I think the people across America would find very shocking. The fact is, they probably have not had the time or the means to try to find this language themselves. That is another reason it is important to have this debate. The Goodridge court goes on to say:

If, as the separate opinion suggests, the Legislature were

to jettison the term ``marriage'' altogether, it might well

be rational and permissible. What is not permissible is to

retain the word for some and not for others, with all the

distinctions thereby engendered.

Translated into English, what the court said is you cannot preserve traditional marriage for some adult couples but not for same-sex couples. But what you could do, in Massachusetts and elsewhere, is eliminate the term ``marriage'' altogether. Shocking. Shocking.

Now, for those who think that we have somehow on this side of the aisle dreamed up this crisis, this threat, this assault to the American family and traditional marriage, let me read just another paragraph. This, again, is the Goodridge decision out of the Massachusetts Supreme Court, mandating same-sex marriage--four judges:

The separate opinion maintains that, because same-sex civil

marriage is not recognized under Federal law and the law of

many States, there is a rational basis for the Commonwealth

to distinguish same-sex from opposite-sex spouses. . . . We

are well aware that current Federal law prohibits recognition

by the Federal Government of the validity of same-sex

marriages legally entered into in any State, and that it

permits other States to refuse to recognize the validity of

such marriages. The argument in the separate opinion that,

apart from the legal process, society will still accord a

lesser status to those marriages is irrelevant. Courts define

what is constitutionally permissible, and the Massachusetts

constitution does not permit this type of labeling. That

there may remain personal residual prejudice against same-sex

couples is a proposition all too familiar to other

disadvantaged groups. That such prejudice exists is not a

reason to insist on less than the Constitution requires.

That is a direct critique and criticism of the Federal Defense of Marriage Act passed in 1996 by a vote of 85 Senators in this body on a bipartisan basis. If that isn't a direct signal that the next law under attack is the Federal Defense of Marriage Act, I don't know what is. In fact, we know that at least four cases are presently pending seeking to accomplish just that.

Now, there have been those who have expressed concerns, saying why in the world would we want to pass a constitutional amendment until a Federal court actually strikes down traditional marriage, even though the Supreme Court has, in Lawrence v. Texas, provided the rationale to do so, and that rationale has been adopted by the Massachusetts Supreme Court, interpreting their Constitution; why in the world do we want to amend the U.S. Constitution at this time?

I might interject that I bet old John Adams, who was the principal author in 1780 of that Massachusetts Constitution, never dreamed that four judges on the Massachusetts Supreme Court would so contort the meaning of that document as to create a right to same-sex marriage. That is one reason they didn't talk about it explicitly, either in the State constitution or in the Federal Constitution.

But in terms of why we shouldn't wait to address this matter, I point out that Massachusetts is a good example of why. If we wait until it is too late, it may well take years for the American people, through the amendment process, to correct that error. In the meantime, we know that same-sex marriages will occur as they currently occur in Massachusetts, and those people will not just stay in one State but will move to other parts of the country to seek to have those marriages validated under the laws of their own State. But we do have an example of when States have chosen, based on a preliminary ruling suggesting same-sex marriage, to amend their constitution. So it is not unprecedented by any means.

As a matter of fact, in 1993 and 1996, Hawaii and Alaska courts issued preliminary rulings suggesting that same-sex marriage may be constitutionally required, and it was in 1998 that Hawaii and Alaska preemptively amended their constitutions before the highest court in those States went as far as the Massachusetts Supreme Court did in the Goodridge case. Indeed, in 2000, Nebraska and Nevada preemptively amended their State constitutions before suits were even filed.

I might add, there have been suits filed in Nevada seeking to force recognition of polygamist marriages under the rationale in Lawrence v. Texas and Goodridge, and, indeed, in Nebraska, there has been a Federal constitutional challenge to that State Constitution defense of marriage provision under this rationale of the Lawrence case seeking to have the Federal Government tell Nebraska it cannot recognize traditional marriage.

I want to move to the Allard amendment, which is two sentences. The first sentence basically says marriage is between a man and a woman. The second sentence seeks to preserve the right of the States to deal with the question of civil unions and to reserve that right to them as opposed to having a court mandate it.

I was a little baffled as to why the Senator from Illinois expressed some puzzlement at the meaning of that second sentence when, indeed, during one of the hearings we had in the Senate Judiciary Committee, he asked Professor Cass Sustein of the University of Chicago Law School:

Under this language, please explain whether a State

legislature could pass a law to establish civil unions.

Professor Sustein responded:

I believe it could because no State constitution would be

affected.

We have heard a number of objections raised that this is a State issue. We have seen charts being trotted out containing the quotations of various public figures. At one time, the Vice President, in a different context, said this should be a matter reserved to the States. And there was a quote from the Vice President's wife, Lynne Cheney, expressing her views, and I certainly respect both of them and their right to express their views. But the fact is this cannot be contained to one State.

It is interesting to hear folks on the other side of the aisle make States rights arguments to folks on this side of the aisle. The shoe is usually on the other foot because they are usually the ones seeking to have the Federal Government tell all the States what they should be doing rather than let each State--what Louis Brandeis once called the laboratories of democracy--work out these various policies.

The truth is, we are not only talking about whether a State should embrace a property tax or a sales tax or perhaps adopt an income tax. In my State, we do not have an income tax, and we are proud of it. We do not want an income tax in the State of Texas. Each State has a right to choose its own policies that way.

I firmly adhere to that and believe the States rights argument is absolutely true. But to suggest we can somehow, as a practical matter, contain this revolution, this radical social experiment mandated by the Massachusetts Supreme Court, in one State denies reality. The fact is people have, indeed, married, they have moved to 46 States and now we have at least 10, maybe more, lawsuits as part of a national litigation strategy to force other States to recognize the validity of that marriage. You would have to be blind to that effort to stand up here and say this is a State matter because it is not.

We know based on the legal arguments of scholars, based on the comments of Senator Kerry back when the Defense of Marriage Act was passed in 1996--something he did not vote for, by the way, and he now says he supports marriage as only between a man and a woman, but then he says he does not support a constitutional amendment either. He was not for the statute, he is not for a constitutional amendment, but he still claims to be in favor of traditional marriage. I don't know if, again, this is one of the nuances, quite frankly, that evades me of his reasoning process, but you simply cannot have it both ways.

Indeed, for reasons we have talked about already at great length, when as a matter of Federal constitutional interpretation by a court, same-sex marriages are required, no State constitution, no State law, nobody has a choice in that matter because our Federal Constitution, indeed, speaks for the entire Nation and not one State.

So no matter how much well-intentioned individuals may wish we can avoid this debate and say this is a local issue, this is a State issue, we do not need to be talking about it, that defies reality.

I know Senator Durbin had suggested at the close of his comments that this is all an attempt to change the subject; that somehow we do not want to debate what is happening in Iraq, what is happening in the economy. I think the American people certainly know we have debated those issues, and we will continue to debate those issues. Frankly, I am proud of what we have been able to accomplish in Iraq under a joint resolution passed overwhelmingly by this body authorizing the President to remove Saddam Hussein from power in that country, something that had been the policy of this Congress since at least 1998 when the Democrats advocated, and we all agreed--or at least those here at that time--in the Iraq Liberation Act. Regime change was a policy of the American Government under Democrat control, under a Democrat, President Bill Clinton. But it took the present President, George W. Bush, I believe, to follow through after Saddam thumbed his nose at 17 resolutions of the United Nations requiring him to open his nation up to weapons inspectors.

You want to talk about the economy, we are glad to talk about the economy. The economy is roaring back, thanks again to the policies advocated by this side of the aisle and led by President Bush who created more than 1.5 million new jobs this year alone. Indeed, home ownership is at an all-time high. The economy is roaring back, so we are glad to talk about that.

Finally, I have heard Senator Durbin say it before and it makes you chuckle when you hear it--well, it is kind of funny. He says he believes no constitutional amendment should be debated--I cannot remember if he said ``debated,'' ``filed'' or ``passed''--during an election year. We did not choose the timing of the Massachusetts Supreme Court's decision. I suggest what we are arguing for is a debate about the most fundamental institution in our society, and that is not a frivolous matter. That is an important matter.

Indeed, there are some, including this Senator, who believe it is the most important matter. Of course, those who have made the States rights arguments, all they need to do is read that Constitution once again, that Senator Durbin spoke eloquently about, to recognize not only does it include a constitutional amendment process, but after two-thirds of the Senate and after two-thirds of the House have passed the resolution, three-quarters of the States have to ratify the amendment. So those who want to stand in this Chamber and say, We believe in States rights, we believe this ought to be handled by the States, the States retain a voice, a critical voice, a crucial, an essential voice in this process through the ratification process.

I believe this is an important issue. It cannot be solved at the local level. It is a national issue requiring a national response. It is not premature because to act only after a Federal court mandates same-sex marriage on a national basis under the guise of interpreting the U.S. Constitution, it will take too long for the people to speak and to overturn that decision and we will see something akin to what we see now happening in Massachusetts, despite the fact the people of Massachusetts have, through their representatives, at least initially, chosen to try to overrule that decision by a constitutional amendment.

The problem is that constitutional amendment cannot be effective until 2006. So what happens in the interim? What happens in the interim is what we see happening today, because of a dictate from the bench by four judges which now we see has a national impact.

I reserve the remainder of our time and yield the floor.

We have been going back and forth, and I certainly want to accommodate every Senator but I also know the Senator from Pennsylvania has been here as well.

I have no problem with that as long as we continue to try to observe the back and forth so each side has an opportunity to speak.

With that exception, I have no objection.

Mr. President, I want to address the motion to proceed to the amendment now pending before the body, the Federal marriage amendment. One of the arguments that I hear again and again--I guess I am so shocked and amazed that somebody would actually make the argument that I perhaps have not done a very good job in responding to it.

For the record, I think it is important to respond to the argument that has been made twice this afternoon on the floor by the Senator from Wisconsin and the Senator from Maryland, that the constitutional amendment process is for expanding and not limiting rights. In other words, they think the only permissible purpose of a constitutional amendment is to expand, not limit individual rights, presumably including the right to same-sex marriage.

These are the same people who accuse supporters of wanting to ``write discrimination into the Constitution.'' I find the argument disturbing and offensive, but I also find it somewhat revealing. I wish that everyone who was engaged in this debate would take counsel in the words the distinguished Senator from Massachusetts, who is in the Chamber, once stated during the course of the debate on the Defense of Marriage Act back in 1996. Even though he did not support the Defense of Marriage Act at that time, he observed that ``there are strongly held religious, ethical, and moral beliefs that are different from mine with regard to the issue of same-sex marriage, which I respect and which are no indication of intolerance.'' I agree with those words.

To those who consider the traditional institution of marriage to be about discrimination, they have already, somehow, made same-sex marriage into a right that is the status quo that those who want to preserve traditional marriage are trying to discriminate against. I don't know whether it is just a technique of argument to try to pin the idea of discrimination or of wanting to limit rights on those who basically want to preserve the status quo as it has existed in our civilization for 5,000 years, and certainly in this country for as long as it has existed or whether they actually have bought into the specious argument that somehow wanting to preserve the institution of traditional marriage for the benefit of the American family and our children is about limiting rights.

It is nothing of the kind. Indeed, both the NAACP and the American Bar Association have testified that they have no position on whether traditional marriage laws should remain on the books.

Now, setting that aside for just a moment, which is rather amazing in and of itself, if marriage were about discrimination, surely both the NAACP and the American Bar Association would oppose it. But it is not, and they did not. To the contrary, religious leaders in every community across America have expressed their support for traditional marriage. They recognize the importance of traditional marriage in their respective communities, including many communities that are all too familiar with the scourge of discrimination.

Indeed, during some of the hearings that we have had on this issue in the Senate Judiciary Committee, we had individuals such as Rev. Ray Hammond of the Bethel African Methodist Episcopal Church in Boston; Rev. Richard Richardson of the St. Paul African Methodist Episcopal Church in Boston; and Pastor Daniel de Leon, Sr., of Alianza de Ministerious Evangelicos Nacionales, otherwise known as AMEN, and Templo Calvario in Santa Ana, CA. Surely, these people, who have fought their entire lives against racial discrimination, and who support traditional marriage, cannot be labeled as bigots or wanting to limit rights or somehow wanting to write discrimination into the Constitution. To the contrary, they understand that it is traditional marriage that represents the status quo.

It was a basic assumption of John Adams when he penned the Massachusetts Constitution but which was rewritten at the hand of four judges on the Massachusetts Supreme Court.

It is those of us who are arguing for this constitutional amendment to preserve the status quo in this country who are doing just that and not attempting to limit rights. Rather, it is telling that those who make accusations are so intolerant of the democratic process contained in article V of the U.S. Constitution that provides a means for the people to express their views and to have a voice, to have a vote on something as important as this.

It is precisely because these activists believe traditional marriage is about discrimination that they believe all traditional marriage laws are unconstitutional and, therefore, must be abolished by the courts. These activists have left the American people with no middle ground. They accuse others of writing discrimination into the Constitution, yet they are the ones writing the American people out of our constitutional democracy.

As I have often said, and I think it is worth saying again, the American people believe in two fundamental propositions, at least, among others: One is the essential dignity and worth of every human being. This is not about wanting to limit rights or wanting to hurt anyone. This is about preserving something that is a positive social good in our society, that has stood the test of time, something that is important to the stability of our civilization, that is important because it is in the best interest of children.

I had the honor for 4 years to serve as attorney general of my State, and Texas is one of the few States where the attorney general has the privilege of enforcing child support obligations. I am very proud of the good work the men and women in my office did to improve our collection efforts by more than 80 percent in 4 years because they were literally able to put food on the table and a shelter over children who did not have that because they were denied the right given to them under our laws to have the financial support to which they are entitled. But it was there I became very aware of the challenges that confront children in a society that cares only about adults and thinks about children only as an afterthought.

We know, as Senator Santorum mentioned, the only place where we actually have some experience, some record of what happens when a radical experiment with the definition of marriage and traditional family takes place is we have this correlation with an increase in out- of-wedlock childbirths and more and more children who are at risk of a whole host of social ills.

As somebody who believes the family first and foremost is there to help those children as they grow, to avoid those risks and to grow up and be productive citizens, I do not think we ought to be taking any chances with the most important and fundamental institution we know of in our society that is designed to operate in their best interest, not coincidentally so that the American taxpayers do not have to continue spending their hard-earned money to provide services that might otherwise be provided by the family, or build more prisons or provide more opportunities for drug and alcohol rehabilitation, other risks that, unfortunately, too many of our children fall trap to today.

I found it very compelling that members of the minority community-- African-American and Hispanic communities--particularly those who work in

places such as Boston and California and elsewhere, are some of the most passionate about the importance of maintaining the traditional family against this attempt to write them out of our laws and out of our Constitution.

It seems the supporters of traditional marriage are faced with an unhappy task: Either we give up the traditional institution of marriage to those activists who want to rewrite the definition, who see marriage as nothing more than discrimination, or we enshrine traditional marriage with the constitutional protection our children need and deserve.

I believe the traditional institution of marriage is too important to sit on the sidelines or to fail to have this important debate. I believe it is worth defending, and that is why I support this important amendment.

I see the Senator from Massachusetts in the Chamber. I will be glad to yield so he may address the Chamber.

Mr. President, today I am pleased to introduce the United States-Mexico Transboundary Aquifer Assessment Act.

This bill is the result of a field hearing I conducted in Las Cruces, NM two years ago during my tenure as the Chairman of the Energy and Natural Resources Committee. The focus of the hearing was water resource issues that were developing along the U.S.-Mexico border-- particularly the area encompassing Las Cruces, El Paso, Texas, and Juarez, Mexico.

There had long existed an ongoing effort to address water quality issues and waste-water infrastructure needs in the border region, but I was concerned that issues regarding the availability of future water supplies were growing. The testimony at that hearing made clear that there exists little consensus on how growing communities in the border region will address their future water needs. In particular, I was struck by the lack of agreement on the long-term viability of future groundwater sources, many of which involve aquifers underlying communities in both the United States and Mexico. Given the rapid population growth along the U.S.-Mexico border and the increasing demand for water, there is a strong need to gain a common understanding of the limits of our shared groundwater resources. A thorough understanding of the resource is the first step to avoiding conflicts similar to those that have arisen between the United States and Mexico over shared surface waters--e.g. the Rio Grande.

The United States-Mexico Transboundary Assessment Act is intended to address the lack of binational consensus regarding the source and availability of future water supplies along the border. It will do this by establishing a scientific program, involving entities on both sides of the border, to comprehensively assess priority transboundary aquifers. The information and scientific tools developed by this program will be extremely valuable to State and local water resource managers in the border region. This effort is to be led by the United States Geological Survey (USGS) working closely with the border states and local entities. Over the last several years the USGS has been working with key stakeholders in the border region to design this technical program.

I understand that establishing this scientific program and accurately assessing our shared water resources is just a step towards developing the long-term plans and solutions that will help avoid future international disputes concerning scarce water supplies. This small step, however, is an important one, and is recognized by a number of organizations familiar with the need for cooperative efforts between the United States and Mexico on shared water resources. In its 6th Report on the U.S.-Mexico Border Environment, the Good Neighbor Environmental Board, an independent federal advisory committee managed by the U.S. Environmental Protection Agency, recommended the initiation of a ``border-wide groundwater assessment program to systematically analyze priority trans-boundary aquifers.'' Also, the Center for Strategic and International Studies, in a January 2003 report of its U.S.-Mexico Binational Council, included as one of its recommendations that Mexico and the United States ``improve data collection, information gathering, and transparency as the first step to developing a long-term strategy for water management.''

Ultimately, the necessary long-term strategy will have to be developed by the communities and other water users who reside along the border. Working with each other and their state water resource agencies, I believe successful strategies can be developed so long as the information that is the basis for the plans is the most accurate possible. In that respect, the USGS has a strong and important role to play. This bill will ensure that the USGS will be able to fulfill this role which, in turn, will enhance the prospects for our border communities to plan for their future and manage their growth in a manner that ensures their long-term viability and prosperity.

I ask unanimous consent that the text of the bill be printed in the Record.

Mr. President, I want to speak for just a few minutes today on an issue on which I have introduced a bill. The bill is S. 1966. It is a bill to require a report on the detainees being held at Guantanamo Bay, Cuba.

The purpose of this legislation is to shed some light on the process that is being used by this administration to determine the status of so-called enemy combatants who are held by our Government at Guantanamo Bay Naval Base. It has now been nearly 2 years since the first detainees arrived at Guantanamo as prisoners of the United States. Yet these individuals are still being held in what most would refer to as legal limbo.

My colleagues will recall that on July 16, I urged the Senate to adopt an amendment to the Defense appropriations bill. That amendment was tabled 52 to 42. It is essentially the same provision--it contained the same provisions I have now put into S. 1966, this freestanding legislation I have introduced.

The day after that amendment was defeated I sent a letter to Secretary Rumsfeld expressing my concern over the apparent lack of any kind of legal process being extended to the detainees being held at Guantanamo. Only recently I received a reply from the Department of Defense. In that letter, the Department of Defense maintains that it:

. . . reviews on a regular basis the continued detention of

each enemy combatant and assesses the appropriate disposition

of each individual case.

According to the Defense Department, at the time they wrote back to me, they said that the review had resulted in the release of 64 detainees who were determined to no longer pose a threat to the United States, and more releases were expected.

However, the letter fails to address the more important question, which is whether the Department's review of these detainees is being done in accordance with any recognized civilian or military legal process.

I ask unanimous consent to have the letter printed in the Record at the conclusion of my remarks.

What prompted me to come to the floor of the Senate today was an article I saw in the morning paper. This appeared in various papers around the country, but the one I have here in front of me is from the Boston Globe. It says:

The U.S. military sent home 20 ``enemy combatants'' last

weekend who were being held without trial at Guantanamo Bay

Naval Base in Cuba, only to replace them with the same number

of new prisoners.

It has a quotation from a spokesperson for the military saying:

We cannot talk about any of the individuals that may have

departed the island due to security concerns.

According to this article, all those transferred last week have been returned, many of them to Pakistan, and all of those transferred last weekend, according to representatives from the countries they are citizens of, said they will be released once they have arrived in those countries.

The figure now, as I understand it, is there are 88 suspects who have been transferred out of Guantanamo Bay. Four were released, 4 were handed over to Saudi Arabia, and the remaining 650 or 700 are still there. As this article indicated, we continue to add additional people to this prison we are operating there at Guantanamo.

There are various complaints described in the article by foreign diplomats about the process we are following. There is a statement by the attorney for one of the human rights organizations that has complained bitterly about the improvisational policy decisions and the arbitrary power over prisoners at the base.

My motives for offering this legislation are very simple. While I obviously have concerns about judicial treatment and the failure of any kind of legal process being followed in the treatment of these detainees in Guantanamo, I am even more concerned about the implications of this treatment we are affording these individuals for our own fighting forces as well as our international reputation.

The bill I filed here in the Senate today requires the Secretary of Defense to report on the status of these detainees, including the process that was utilized to determine that status for those who have already been released from Guantanamo. The bill requires the Secretary to provide information related to this release, how long they were detained, the conditions of their release, if any, the explanations of why the Department of Defense has now determined these individuals could be released after what has in many cases been a very long detention.

For the remaining detainees--those who are still at Guantanamo--the administration has still refused to provide ``access to an impartial tribunal to review whether any basis exists for [detainees] continued detention.'' The detainees have not been allowed to speak with their families or their counsel, nor have they been informed of any charges against them, as far as I am informed.

The bill I filed requires that within 90 days of its enactment the Secretary of Defense provide the Senate with information related to the process used to categorize and hold these detainees. It does not call for release of the detainees. It does not in any way, shape, or form require the release of any classified information other than to the chairman and vice chairman of the Senate and House committees. The amendment merely seeks to clarify for the Senate and for the Congress the process by which the detainees' status is determined.

Like most Americans, I have always thought that what distinguished our country in the history of the world was our commitment to individual freedom and to the rule of law; that the bedrock of a free society is the obligation taken by the Government to afford individuals with certain legal protections, and as a Nation committed to these principles we have been instrumental in the formulation and enforcement of international law, particularly when it came to the treatment of prisoners of war. For over 75 years, the United States has adhered to the Geneva Convention. Even during conflicts with insurgents and irregular forces, we have adhered to the Geneva Convention. Whenever our Nation has gone to war, we have taken pride in going above and beyond the requirements of international law as set out in the third Geneva Convention of 1929. In fact, the Department of Defense has adopted its own detailed regulations and doctrine and field manuals built on the provisions of the Geneva Convention which have guided our military through many conflicts regardless of size and scope and duration.

These regulations we have in our own military, like international law, do not contemplate the legal limbo we are holding these detainees in at Guantanamo. Neither the Geneva Convention nor the established military regulations define or use the term the President is using here. This term, unlawful combatant, is a new term which has come up in order to sidestep the requirements both of the Geneva Convention and of our own military regulations. Army Regulation 190-8 provides an effective and efficient process to

categorize the detainees on the battlefield. According to that provision, detainees must be classified either as an enemy prisoner of war, a recommended retained person entitled to enemy prisoner-of-war protections, an innocent civilian who should be immediately returned to his or her home or released, or a civilian internee who, for reasons of operational security, or probable cause incident to criminal investigation, should be retained. Such internees have the right to appeal the order directing their internment by challenging the existence of imperative security reasons that led to their detention.

The President's unilateral determination of the detainee's status at Guantanamo Bay signals a significant departure from the spirit of the Geneva Convention and a significant departure from the letter of established military regulations. In stark contrast to our Government's previous commitment to adherence to the rule of law and human rights, this administration has adopted a position that once the President designates that a person is a so-called enemy combatant or unlawful combatant, a term created by the administration, that person can be locked up and held incommunicado as long as the President desires, with absolutely no legal rights; no right to review of that decision. This means even if the administration makes a mistake or is given faulty information, it is virtually impossible for the person involved to prove his or her innocence because not only can they not talk to a lawyer or to family members, but they do not have the right even to know what they are being charged with.

The U.S. Supreme Court has agreed to consider the narrow question of whether the Federal courts have the power to hear challenges to the detainees' imprisonment. This is a significant move towards restoring the system of checks and balances, which needs to be restored--the system of checks and balances our Founders felt was essential to preserving liberty in the country. Similarly, the bill I have filed begins to fulfill Congress's constitutional responsibility to oversee what the executive branch does. It calls on the administration to tell us whether its actions are in accordance with military regulations and doctrine.

Our goal is to bring transparency to the issue and to fulfill Congress's constitutional role of oversight of the executive. We should know what process the administration is using to determine the status of these detainees.

My concern is much broader than what happens to these particular detainees. I am concerned about the impact of our treatment of these detainees on the treatment of our own military personnel who are captured in future conflicts. Former U.S. diplomats and judge advocate generals and even former U.S. prisoners of war filed ``friend of the court'' briefs in the Supreme Court questioning the legality and wisdom of the administration's policy of open-ended detentions at Guantanamo. Some of those briefs were extremely thoughtful, in my view. One former diplomat wrote:

It has been the experience of each of us that our most

important diplomatic asset has been this Nation's values. . .

. The hint that America is not all that it claims, that it .

. . can accept that the Executive Branch may imprison whom it

will and do so beyond the reach of due process of law demeans

and weakens this Nation's voice abroad.

In their brief, former judge advocate generals, the military's legal prosecutors and those most familiar with the law as it applies to enemy prisoners of war, strongly argue:

To be sure, this is a perilous time, as the President has

stated. But that does not justify indefinite confinement

without any type of hearing or judicial review. The United

States played a major role in the development and adoption of

the Geneva Conventions. The requirements of those

Conventions. The requirements of those Conventions are

incorporated directly into American Military Regulations.

American failure to provide foreign prisoners with the

protections of the Geneva Conventions may well provide

foreign authorities, in current or future conflicts, with an

excuse not to comply with the Geneva Conventions with respect

to captured American military forces.

Just as compelling are the stories told in the ``friends of the court'' brief filed by former prisoners of war. They argue that as a result of their own experience as prisoners of war, the United States has an interest ``in fostering the development, acceptance and enforcement of international norms pursuant to which prisoners of war and others captured during armed conflicts will be treated humanely and in accordance with the rule of law.'' They emphasize, that in particular, they ``wish to ensure that the treatment by the Untied States of foreign detainees . . . is such that the United States and former American POWs retain the moral authority to demand fair and humane treatment for any future Americans detained by foreign governments.''

However, nothing more clearly demonstrates this point than the actual stories themselves. Leslie H. Jackson, Edward Jackfert, and Neal Harrington are former prisoners of war. Mr. Jackson was captured by the Germans, who adhered to the Geneva Conventions. Mr. Jackfert and Mr. Harrington were held by Japan, which had not ratified and did not purport to follow international law.

If you will allow me to read them their brief:

Mr. Jackson was captured by the German Army on April 24,

1944, when his B-17 bomber crashed. Jailed and interrogated

for approximately one week, he was then transported to Stalag

17, a converted concentration camp. In his 13 months of

captivity, Mr. Jackson was granted the bare necessities:

shelter, minimal food, and the ability to socialize with

other American POWs. While the experience was harsh and

unpleasant, Mr. Jackson was never tortured or otherwise hurt

by the German guards. To follow the terms of the Geneva

Conventions of 1929, to which Germany was a party, Mr.

Jackson's German captors placed the appropriate Geneva

Convention signage in the barracks, permitted the

international Red Cross to ship basic necessities to POWs,

and allowed a Geneva inspector to survey the premises. Mr.

Jackson believes that his survival and relatively good health

while in captivity are the result of the German Army's

adherence to the 1929 Geneva Conventions.

The experiences of Mr. Jackfert and Mr. Harrington in the

custody of Japan, which had not ratified and did not purport

to follow the 1929 Geneva Conventions, offer a sharp

contrast. Both men were serving with the U.S. Army in the

Philippines when it surrendered to the Japanese in 1942, and

both subsequently served several years of hard captivity

beyond the reach of any Geneva Convention protections. Both

were part of the Bataan Death March and its well-documented

horrors. Mr. Harrington was forced into slave labor in a

Japanese coalmine, and saw his compatriots starved, beaten

and killed. Mr. Jackfert was also forced into slave labor

and suffered the extreme effects of heavy labor, cruelty

and inadequate nourishment, going from 125 pounds to 90

pounds in a matter of months. There was no Geneva signage,

no recognition of prisoner rights, and virtually no Red

Cross access.

Nor were the experiences of Mr. Harrington and Mr. Jackfert

atypical. Studies have determined that the death rate of U.S.

Military personnel interned by Japan was as high as 40

percent while the death rate of personnel captured and

interned by Germany was little more than 1 percent. . . .

Moreover, while it was rare for American POWs detained in

Germany to be tortured, the opposite was true for American

POWs in Japan. No one can adequately impart the suffering

most allied prisoners endured [in Japan]. . . . They were

beaten, kicked, robbed . . . and were buried alive. . . .

[T]he overwhelming majority endured ``hell on earth.''

Again, let me say, I am in no way suggesting that the detainees are not being treated humanely. In fact, from all information I have received, they are being treated humanely. But what I and these briefs that were filed in the Supreme Court are suggesting is that our failure to adhere to some recognized legal process in determining the status of these detainees opens the door for other countries to refuse to adhere to any legal process as well. It may very well result in arbitrary confinement and harsh treatment or other inhumane practices applied to our own citizens.

This bill will help Congress fulfill its duties and obligations as outlined in the Constitution and in U.S. law and regulation.

I hope we can quickly pass this legislation when we return for the second session of the Congress in January.

I yield the floor.

Exhibit 1

[From the Boston Globe, Nov. 25, 2003]

US Releases 20 Detainees, Transfers 20 More to Cuba

(By Charlie Savage)

Washington.--The U.S. military sent home 20 ``enemy

combatants'' last weekend who were being held without trial

at Guantanamo Bay naval base in Cuba--only to replace them

with the same number of new prisoners.

The prisoner transfer, the first such movement since mid-

July, followed a determination by senior military and

intelligence officials that the outgoing group ``either no

longer posed a threat to U.S. security or no longer required

detention by the United States,'' according to a statement

the Department of Defense released yesterday.

``We can't talk about any of the individuals that may have

departed the island due to security concerns,'' said

Lieutenant Colonel Pamela Hart, a spokeswoman for the

isolated facility at which the United States detains and

interrogates suspected terrorists.

But a high-ranking Pakistani official, who said yesterday

that at least five of the outgoing transferees were Pakistani

citizens, offered a chilly reaction to the Pentagon's news.

``The government is happy, but this is too damn late,''

said Imran Ali, second secretary of the Pakistan Embassy,

adding that 21 Pakistanis have been released from Guantanamo,

but another 37 are still there.

``Their lives have been destroyed. Their families have gone

through psychological trauma, since they were not terrorists;

they were just low-level Taliban fighters.''

The Pakistani official's reaction illustrated the pressure

on the United States to resolve the situation--especially

from allies in the war on terrorism who have expressed

concern for their citizens who are among the 660 prisoners

from 42 countries being held at the base.

Although the State Department has been negotiating with a

number of countries to continue the detention of some, all

those transferred last weekend will be released by their

countries, U.S. officials said.

The Pentagon statement said that ``at the time of their

detention, these enemy combatants posed a threat to U.S.

security.'' It offered little information about the new

arrivals, except that they were transferred from U.S. Central

Command in the Middle East.

Navy Lieutenant Commander Barbara Burfeind, a Pentagon

spokeswoman, said none of the new detainees were captured in

Iraq.

The weekend transfers of the detainees bring to 88 the

number of Al Qaeda or Taliban suspects who have been

transferred out. Of those, 84 were released and four were

handed over to Saudi Arabia.

Ruth Wedgwood, an international law professor at Johns

Hopkins University, said the arrival of the 20 new detainees

follows a flare-up of fighting by Taliban insurgents in

Afghanistan.

Wedgwood has defended the Bush administration's position

that the rules of the Geneva Conventions do not apply to the

detainees because they were not soldiers of a regular Afghan

army.

``Dismayingly, the Taliban have become very active again in

the southern area, so really . . . the war isn't over in that

area,'' she said.

Not among those who were transferred for release, according

to a senior Pentagon official, were the three ``juvenile

enemy combatants''--Afghans ages 13 to 15 who were captured

fighting alongside the Taliban and whose detention at the

prison has attracted particularly intense international

criticism. The commander of Guantanamo operations, Major

General Geoffrey Miller, had recommended that they be sent

home in August.

U.S. officials say they have been coordinating with UNICEF

in the event that the young fighters are released. UNICEF, a

United Nations agency that has offered to handle the juvenile

combatants, runs a program to ease the reintegration of

former child soldiers back into their home societies.

``The State Department and UNICEF will make sure that if

they're returned to Afghanistan, they won't just be plopped

down,'' a Pentagon official told The Boston Globe last week.

Ken Hurwitz of the Lawyers Committee for Human Rights, a

New York-based organization, said that the surprise release

reflected the military's ``improvisational'' policy decisions

and its arbitrary power over the prisoners at the base.

``It's the rule of law that's the point,'' he said.

``They're saying, `Trust us, and we'll do the right thing.'

But there is no right thing unless it's pursuant to some kind

of ordered, lawful proceeding.''

Challenges to the detentions that have been filed in

federal court have so far been dismissed because the base is

located on Cuban soil--it has been leased and controlled by

the United States for a century--and outside the jurisdiction

of U.S. sovereignty. Two weeks ago, the Supreme Court said it

would review the question of whether federal court

jurisdiction may extend there.

In a related development, the lawyer for Army Captain James

``Yousef'' Yee, the former Muslim chaplain at Guantanamo who

was arrested in September in the alleged mishandling of

classified material, sent a letter to President Bush

yesterday asking that his client be released from pretrial

detention for Thanksgiving and his daughter's birthday.

``These charges do not warrant pretrial confinement of any

kind,'' Eugene Fidell wrote in the letter. ``While military

sources initially reported a wild laundry list of suspected

offenses, such as spying or aiding the enemy, these have now

been reduced to two relatively minor [charges]. . . .

Nonetheless, he is being treated as if the original laundry

list of charges was the legal basis for his confinement. This

is totally wrong and unfair.''

Sean McCormack, a spokesman for the National Security

Council, said he would look into the letter, but had no

comment on the president's behalf.

Mr. President, I rise today to introduce legislation with Senators Domenici, Murray, Jeffords, Cantwell, Akaka, Reed, Chafee, and Inouye entitled the ``Children's Health Equity Technical Amendments Act of 2003.''

Since the passage of the Children's Health Insurance Program, or CHIP, in 1997, a group of States that expanded coverage to children in Medicaid prior to the enactment of CHIP have been unfairly penalized for that expansion. States are not allowed to use the enhanced matching rate available to other States for children at similar levels of poverty under the act. As a result, a child in the States of New York, Florida, and Pennsylvania, because they were grandfathered in the original act or in Iowa, Montana, or a number of other States at 134 percent of poverty is eligible for an enhanced matching rate in CHIP but that has not been the case for States such as New Mexico, Vermont, Washington, Rhode Island, Hawaii, and a number of others, including Connecticut, Tennessee, Minnesota, New Hampshire, Wisconsin, and Maryland.

As the health policy statement by the National Governors' Association reads, ``The Governors believe that it is critical that innovative states not be penalized for having expanded coverage to children before the enactment of S-CHIP, which provides enhanced funding to meet these goals. To this end, the Governors support providing additional funding flexibility to states that had already significantly expanded coverage of the majority of uninsured children in their states.

For six years, our group of States have sought to have this inequity addressed. Early this year, I introduced the ``Children's Health Equity of 2003'' with Senators Jeffords, Murray, Leahy, and Ms. Cantwell and we worked successfully to get a compromise worked out for inclusion in S. 312 by Senators Rockefeller, and Chafee. This compromise extended expiring CHIP allotments only for fiscal years 1998 through 2001 in order to meet budgetary caps.

The compromise allowed States to be able to use up to 20 percent of our State's CHIP allotments to pay for Medicaid eligible children about 150 percent of poverty that were part of our State's expansions prior to the enactment of CHIP. That language was maintained in conference and included in H.R. 2854 that was signed by the President as Public Law 108-74. Unfortunately, a slight change was made in the conference language that excluded New Mexico and Hawaii, Maryland, and Rhode Island needed specific changes so an additional bill was passed, H.R. 3288, and signed into law as Public Law 108-107, on November 17, 2003. This second bill included language from legislation that I introduced with Senator Domenici, S. 1547, to address the problem caused to New Mexico by the conference committee's change.

Unfortunately, one major problem with the compromise was that it would allow the 10 States flexibility with its CHIP funds for allotments between 1998 and 2001 and not in the future. Therefore, the inequity continues with CHIP allotments last year, this year, and into the future. This legislation would address that problem and ensure that all future allotments give these 11 States the flexibility to use up to 20 percent of our CHIP allotments to pay for health care services of children above 150 percent of poverty in our respective state Medicaid programs.

This rather technical issue has real and negative consequences in States such as New Mexico. In fact, due to the CHIP inequity, New Mexico has been allocated $266 million from CHIP between fiscal years 1998 and 2002, and yet, has only been able to spend slightly over $26 million as of the end of last fiscal year. In other words, New Mexico has been allowed to spend less than 10 percent of its federal CHIP allocations.

With the passage of H.R. 2854 and H.R. 3288, that situations will improve somewhat. Unfortunately, the change was not made permanent and does not apply to future CHIP allotments. This legislation would correct this problem.

It is important to note that this initiative includes strong maintenance of effort language as well as incentives for our State to conduct outreach and

enrollment efforts and program simplification to find and enroll uninsured kids because we feel strongly that they must receive the health coverage for which they are eligible.

The bill does not take money from other States's CHIP allotments. It simple allows our States to spend our States' specific CHIP allotments from the Federal government on our uninsured children--just as other States across the country are doing.

I ask unanimous consent that the text of the bill be printed in the Record.

I thank the Presiding Officer and Senator Allard for his leadership on this issue. I am proud to cosponsor this legislation with him.

I think a constitutional amendment is appropriate, and I believe it is worthy of this Senate to take time to discuss it. I believe it is important for the American people to understand the danger, the threat to marriage as we have known it in this culture and, indeed, as it has been known for thousands of years. It is endangered by the decisions of unelected judges who are not accountable to the public. As a result, it is their States rights that are being eroded through this kind of activity.

The U.S. Supreme Court, as I discussed in some detail last night, through the ruling in Lawrence v. Texas has very clearly-- philosophically and as a matter of principle--placed marriage as we have known it in jeopardy. Indeed, Justice Scalia predicted, in dissent, this is exactly where the Court is headed. It is exactly what the Supreme Court of the United States is going to do. It is going to rule consistent with the Supreme Court of Massachusetts. We are on the verge of seeing that happen. If they do not do it next year, or even the year after that, that does not mean that marriage as we know it in America today is not under threat of a Supreme Court ruling. No one in this body would assert with confidence that the Supreme Court, in light of their language in the Lawrence case, is not about to adopt a ruling similar to that of Massachusetts. So marriage is in jeopardy by the U.S. Supreme Court, jeopardy in terms of the way we have defined it traditionally.

This is not an act of the people. It is not an act of any legislature. No State or Federal legislative body that has ever sat has concluded this way. None. None has voted for this kind of definition of marriage.

I will emphasize, first of all, for those who believe that States have the ability to do something by passing a constitutional amendment or a State statute dealing with marriage to affirm traditional marriage, that would be wiped out by one ruling of the U.S. Supreme Court. The U.S. Supreme Court, when it defines the equal protection clause of the due process clause of the U.S. Constitution, trumps any State law.

What we are doing is to protect, defend the rights of the States to adopt legislatively the position they have always adopted. I believe it is an important national issue, as has been discussed by a number of very fine lawyers.

Jon Kyl, yesterday, in his statement--and Senator Kyl has argued three cases before the U.S. Supreme Court--delineated the mess we will be in when people move from State to State with children they have adopted. Their relationships are one in one State, another in another State. A national definition of marriage is healthy for the country.

But I tell you, I would admit, we would not be here if it were not for the courts. We would not be seeking a constitutional amendment. We would not be in this debate had we not been placed in a position where the American people have to stand up and defend their democratic powers against an activist judiciary.

Let me add parenthetically, this is what the debate over judges is about; it has been going on in this Congress for several years now. President Bush believes in judges who follow the law, not make the law, judges who do not believe it is their right and that they have the power to impose their personal views on people through their ``definition'' of the Constitution of the United States.

For 200 years plus, we have had an equal protection clause. It is only recently that some judges seem to believe that allows them to redefine marriage.

That is a stunning activist decision. It is the same kind of decision we have seen on the Pledge of Allegiance, the same kind of decision we have seen on many other issues coming before us today. It would be very appropriate that the American people, following the constitutionally approved process of a constitutional amendment, would answer that and say what they think about marriage and how it ought to be defined. The truth is that we will be better off with a fundamental definition of marriage nationally. It is important that we do so because of the action of the courts.

Some say: Well, the American people don't want this. My phones are ringing off the hook. I don't know about Senator Allard or the Presiding Officer. I had my people check. We have had 1,500 calls for this amendment and less than 30 or 40 opposed. The American people are concerned about it, and rightly they should be. Maybe, as with a lot of important issues that come before the Senate, they are not fully informed of what is happening, and this debate will help them become better informed. I don't know.

My colleague, Senator McCain, suggested that the American people don't support this constitutional amendment. I am just looking at some recent survey data. Here is one from June 23-24, 2004. Do you favor or oppose a constitutional amendment that defines marriage as a union between a man and a woman: Favor, 57 percent; opposed, 38 percent. That was New Models survey.

Here is one, CBS News-New York Times. Would you favor or oppose an amendment to the U.S. Constitution that would allow marriage only between a man and a woman: Favor, 59 percent; opposed, 35 percent. That is March of this year.

I don't think the American people are fully understanding of just how far the courts have moved and just how much the traditional definition of marriage is under attack today. Members of this Congress need to think about that. I don't believe it is going away after this vote. The issue will remain alive. The American people are going to continue to contact their legislators because the matter is important. Marriage is important.

Senator Brownback, who does such a good job, has gone into some detail today and yesterday on how we have seen in Europe and Scandinavia that the adoption of same-sex marriages has furthered the decline in respect for marriage in those countries. And after those acts have occurred, we have seen a substantial surge in the number of out-of-wedlock births in those countries and the decline of marriage. It is rather dramatic.

Just within the last few days, six experts from Scandinavia have written a letter to other European nations and the United States, I suppose, telling them that they ought to be careful when they start tinkering with the traditional definition of marriage. It has serious sociological impacts on the life and culture of those countries. It is time for us to back up a little bit.

I would also note parenthetically that we have not adopted the socialist model of Europe. Our economy is

stronger. Our unemployment is less. Our growth rate is higher. Our economy is healthier than Europe. We have not followed their mentality on national defense and we have the strongest military in the world and we have the strongest capability in the world. So why would we want to adopt their ideas about marriage? It would be the wrong thing for us to do.

The fact that we have resisted in those areas tells me that we are not on an inevitable decline in marriage.

I ask unanimous consent that I be allowed to speak as in morning business.

We need to think about those issues and consider seriously the direction this country intends to take on marriage. That is all I am saying. I urge my colleagues to realize this is a significant vote. What we say indicates what this Nation, what this culture thinks about marriage.

I am going to talk in a moment about why it is important. But I do believe it is not disputable that adopting a same-sex marriage culture undermines and weakens marriage.

We had two articulate African-American leaders speak to a group of us a few days ago. They pointed out how hard they worked to sustain marriage in their churches and in their communities, how important they believe it is that there be stable, strong families so that children can be raised in that environment, and how hard they have worked at it and how frustrated they are that we would think about changing the definition of marriage because they are convinced that it would undermine the classical marriage relationship.

Let me just say one more thing parenthetically. I do not believe this debate should be negative. I do not believe it should put down any person, any group of people who have alternative lifestyles. Our Nation allows people to express themselves and live as they choose. I do believe, however, that it is important for us to have as the marital relationship in our country the ideal relationship of a man and a woman. That is what we have always done, and that is what we ought to proceed with now.

I do not believe it is appropriate for me to judge someone else's behavior. That is between them and their Lord. One wise thinker talked about the Scriptures. He said: The Scriptures say we should not be greedy, that we should not be violent. The Scriptures say we should not be angry. All of us violate all kinds of values, principles, moral rules of behavior that our Creator has set for us. So I am not here to judge anybody or condemn anybody. They must live and make their own judgments about how to behave. I have certain beliefs about proper standards of behavior, but I am not able to say I am any better than anybody else who may or may not fail to act in a proper way.

Let's talk about why marriage is important. If we are at a point where we are convinced that this judicial change could further weaken the institution of marriage, then what impact will that have on the people of this country? What impact will that have on the quality of life and the health and vitality of our next generation of young people?

I had the privilege to chair a hearing recently in the Health, Education, Labor, and Pensions Committee. It was entitled ``Healthy Marriage: What Is It and Why Should We Promote It.'' It was a very excellent hearing. I learned an awful lot.

We asked three questions. First, is marriage good? Is it a good thing? Second, if marriage is good, should the Government involve itself in promoting that good? And finally, significantly, can the Government make any difference in marriage in a culture?

After listening to a distinguished panel of witnesses, I determined that the answer to each of these questions is yes. First, we know that marriage is a social good. Children are more likely to be healthy in two-parent homes, and there is less government dependence when people are in families led by married parents.

Second, while government should not be involved in the decision to marry--of course, that is an individual decision--once that decision is made, government should be on the side of supporting marriage, affirming marriage, certainly doing nothing to undermine marriage or reduce its power, its legitimacy, and its sanctity in society.

Government is often on the side of promoting social good. For example, government incentives exist for home ownership. Why? Because we believe home ownership makes for a more stable community. It allows families to generate wealth and create wealth and have something to live in in their old age. That is a good goal and we promote it. We have tax breaks for charitable giving because we want to encourage charity. We have government grants, loans, and tax breaks to encourage people to enhance their education. We have government incentives for preventive health care.

Finally, government can make a difference. Positive examples of government involvement in helping marriage include the Oklahoma marriage savers initiative, as former Oklahoma Gov. Frank Keating testified at our hearing. The marriage savers community policy is something we studied carefully. In the community that has a marriage savers policy, it has strengthened marriage.

I thought the most dramatic testimony came from Dr. Barbara Dafoe Whitehead. I will talk about her testimony in a moment. We also heard from Roland Warren and Dr. Wade Horn, who testified on a number of issues.

All right. So if we continue the European model of deemphasizing the importance of classical marriage, defining it down, if we follow that direction and that further undermines marriage in a society, will it hurt our society? Will we be diminished by it?

Let me share with you some of the facts that have been assembled by Barbara Dafoe Whitehead, Ph.D., director of the National Marriage Project. Ten years ago, she wrote an article that was voted one of the most significant articles in the second half of the 20th century. The title was, ``Dan Quayle Was Right.'' It had to do with former Vice President Dan Quayle's speech in which he questioned the blase way we treat divorce in our society, and he raised aggressively the importance of marriage. He was roundly condemned and made fun of at that time. Dr. Whitehead later wrote her article. She said she took a lot of criticism. She had criticism from colleges and universities about the data that she had reported from various studies around the country. She noted that she doesn't hear criticism today. Nobody disputes the data. No one disputes that a two-parent traditional family is a healthy, positive force for our society. That is why it is perfectly legitimate for any government to provide laws that further that. That is what we want to do.

Government has a right to further social institutions, to affirm them legally, those institutions that make their society more healthy. This is some of what she said in her statement to the committee:

On average, married people are happier,

healthier, wealthier, enjoy longer lives, and report

greater sexual satisfaction than single, divorced, or

cohabitating individuals.

Well, after that, I went home and thanked my wife for putting up with me all these years. That is a good affirmation of marriage. There are very few matters that are not encompassed in there that are improved by marriage. She went on to say:

Married people are less likely to take moral or mortal

risk, and are even less inclined to risk-taking when they

have children.

Isn't that a good thing? I think so.

They have better health habits and receive more regular

health care. They are less likely to attempt or to commit

suicide. They are more likely to enjoy close and supportive

relationships with their close relatives and to have a wider

social support network. They are better equipped to cope with

life crises, such as severe illness, job loss, and

extraordinary care needs of sick children or aging parents.

Those are things that come from a marriage. She said:

If family structure had not changed between 1960 and 1998,

the black child poverty rate in 1998 would have been 28

percent rather than 45 percent, and the white child poverty

rate would have been [less, also].

Children experience an estimated 70 percent drop in their

household income in the immediate aftermath of divorce and,

unless

there is a remarriage, the income is still 40 percent to 45

percent lower 6 years later than for children in intact

families.

Mr. President, we know these are statistical numbers. We know many families do an extraordinary job outside of the two-parent relationship. Single moms are some of the most courageous people this country has today. They do a great job in many ways, but it is more difficult. Statistically speaking, we know it is more difficult to be as effective.

I will add some other things.

The risk of high school dropout for children from two-

parent biological families is substantially less than that

for those from single-parent or stepfamilies. Children from

married-parent families also have fewer behavioral or school

attendance problems and higher levels of educational

attainment. They are better able to withstand pressures to

engage in early sexual activity and to avoid unwed teen

parenthood.

I think those are important values.

They are significantly more likely to earn four-year

college degrees or better, and to do better occupationally

than children from divorced or single-parent families.

On average, children reared in married-parent families are

less vulnerable to serious emotional illness, depression and

suicide than children from non-intact families.

Close to 4 out of 10 American children go through a

parental divorce.

Children from married-parent families have more satisfying

dating relationships, more positive attitudes toward future

marriage, and greater success in forming lasting marriages. .

. . [Y]oung men from married families are less likely to be

divorced and more likely to be married. . . . In addition,

young men from married-parent households have more positive

attitudes toward women, children, and family life than men

who grew up in nonintact families.

Poverty rates for married couples are half those of

cohabitating couple parents and one-third those of

noncohabitating single parents in households with other

adults.

The traditional family is a protection against poverty. The numbers are indisputable on it. I don't see how we can dispute it. So the question is, Do we agree that the rulings of the courts that threaten traditional marriage will further a decline and disrespect for marriage? Will it weaken the definition of marriage, reduce its power and sanctity and integrity? Is that true? I think it is. If that is so, then that is not good for our culture.

If there are not families here to raise children, if there are not families here to nurture them, if there are not families to educate them, to hug them at night, to take them to church, or to help them with their homework, or to tell them how to get over their anger and forgive people who have wronged them, and to go on and be happy and be strong and courageous and do the right thing, who is going to do that? Is it going to be the government, through increased social taxes and welfare, or a secular institution who, by definition, as we have learned in this body, cannot say anything of a spiritual nature in terms of raising children? Do they have to be raised by some secular State? Are we going to be better off if that occurs? I don't think so.

I am not talking about partnerships by people who choose to live together. I am talking about the State definition of marriage. Is that important for America? I think it is.

I see the Senator from Kansas. He eloquently, as I indicated earlier, delineated and explained why the redefinition of marriage guarantees that continual erosion of marriage, and if we erode marriage, we erode this culture, and it will hurt children. It will undermine them and it will undermine our strength as a nation, something any State, any nation has a right to be engaged in, and it ought to be engaged in through its elected representatives, the people they elect, and the people should be able to decide this.

I could go on with point after point from Dr. Barbara Dafoe Whitehead. Her scientific, indisputable evidence of the dangers we face if we think we can blithely go along with the idea that marriage is only what makes people feel good, that marriage is only for adults and what they feel at the time and what they would like to do at the time.

People can do what they like to do--they really can--in this country. We are not putting people in jail for that. But they do not need to have a definition of marriage apply to relationships of that kind. The American people have not voted for it. They have never voted for it. They do not favor it now, and I do not believe they are going to vote for it.

The question is, Will we allow them, through this constitutional amendment process, to speak to the unelected judges through the proper amendment process? Will we block it in the Senate? Or are we going to send it out to the States and let the people have a chance to be heard? I think that is what we ought to do. I cannot imagine why we would not want to do that.

A lot of people say: I do not believe in same-sex unions, or I believe marriage ought to be between a man and a woman. It is nice to say that. Why don't you vote for it? Let's have people up here vote for it; otherwise, we are facing a very strong likelihood we will continue to see the courts erode this historic institution that is so important to our culture.

I thank the Chair.

I will be pleased to attempt to answer the question of the Senator from Pennsylvania.

I am not aware of that.

I think the Senator from Pennsylvania is exactly correct.

I have not been here throughout the day. I have not heard all of those charges made, but it does seem close to what I have been reading and hearing; yes.

No, I think the Senator made a very critical point, and that is there is no room to suggest that those of us who read the Supreme Court opinion of the United States, who watch what is happening in Massachusetts, who have seen what is happening in other places around the country, actions that are contrary to the will of the people of the United States of America through their elected representatives-- and people say--they agree with the people. People indicate they are supportive of where the people are. So how can they condemn an amendment that Senator Allard has worked on that simply affirms the traditional definition of marriage that they say they support?

I will be pleased to yield.

The Senator is absolutely correct. Dr. Wade Horn, from the Department of Health and Human Services, who testified before my committee, says that any welfare reform we pass must help strengthen marriage because without marriage, poverty is increased.

I could not agree with the Senator more. Why would we do this? I think most Senators who are elected to this Senate have campaigned on and heard from their constituents a growing concern and unease about some of the cultural trends we are seeing, particularly in family and values in the family. All of us have said we are going to do something about it. We need to strengthen family and not undermine it. I believe this is a step downwards.

I know the Senator was an admirer, as I have been, of former Senator Daniel Patrick Moynihan, a great scholar, a man who studied social policy in depth as a professor, as a Cabinet member, and as a Senator. The Senator stated the other day how important that Democratic Senator from New York felt about marriage. If the Senator recalls those words, it would be important for us to hear them again.

Mr. President, I yield the floor to the Senator from Kansas.

Will the Senator yield for two brief questions? One is, as you discussed and I attempted to discuss, isn't it valid and doesn't a government have a rational basis to affirm traditional marriage? Isn't there evidence, based on the data we have heard and seen, that there is a rational, foundational basis for a government to affirm the traditional marriage as opposed to other relationships in society?

I couldn't agree with you more. You stated it so well.

I do not want to demean or speak down about any relationship or any persons and the choices they make. But let's say this. Statistically speaking, do fathers and mothers both make different contributions to the health and development of a child?

I thank the Senator.

Mr. President, I will briefly reiterate an important factor-- Senator Santorum has eloquently argued the legal and the policy issues that are so important with regard to marriage and why that institution needs to be strengthened, not weakened. Policies of government create tendencies in the culture. The recognition of same- sex marriages would have a tendency to weaken marriage, and that is exactly the wrong direction we ought to go.

How did it occur that we are debating the question of the definition of marriage in the Senate? It occurred because of a ruling last year by the U.S. Supreme Court in Lawrence v. Texas that clearly implied that the Supreme Court of the United States believes that the Equal Protection clause of the U.S. Constitution says one cannot have marriage only between a man and a woman, as has been done in every culture that I know of since the beginning of time and as I believe every single legislature that has ever sat in the history of the American Republic has so defined.

These judges in Massachusetts have now followed up on that Lawrence case of the U.S. Supreme Court and taken it to its conclusion, citing the Lawrence case in its opinion. They have declared that the Equal Protection clause of the constitution of Massachusetts--basically similar to the U.S. Constitution--says one cannot treat same-sex unions differently from traditional marriage. That is a serious stretch, in my view. That indicates that our courts are losing discipline; our courts are imposing, through interpretations of the Constitution, their personal values on society. That is not correct.

It undermines democracy. It undermines the power of the American people to decide for themselves how their culture and their society ought to be ordered. I believe very strongly in that. So it is not surprising to me that the senior Senator from Massachusetts, Mr. Kennedy, probably the leading defender of judicial activism in this body, is the only one who I have heard since we have been in this debate say he agreed with that activist decision. It is a decision by a court to step out and impose through interpretation of the language of the Constitution values on the American people of which they do not approve.

Indeed, it is not even the values of the people of Massachusetts, as we know the Governor has roundly opposed this. The legislature has taken action. Efforts are being undertaken to pass a constitutional amendment to fix it. So even in the most liberal State in the Nation, even with Senator Kennedy--and his colleague, I suppose, opposing this amendment--the people and the legislature and the Governor do not approve of this. So certainly the American people have a right to be concerned.

I see the Senator from Pennsylvania. He spoke on this. I have heard him speak on the issue of judges before. I would like to ask his view-- is this not just one more example of the divide and the difference of opinion that exists in this body about the role of a judge? Is this not indicative of what President Bush has expressed his concern about, which is activism in judges? Does not judicial activism undermine democracy when we have unelected judges setting social policy?

Could I interrupt the Senator and just follow up on that?

The Senator is in part of the leadership in this Senate on the Republican side. Is it not true, based on his experience, that even the House and the Senate defend amongst themselves their prerogatives and do not the House and the Senate defend their own power against the executive and does not the executive branch defend its own power against the legislative branch?

Well, with regard to Madison, that father of the Constitution and a man I admire, he set up coequal branches and he expected each one to be a check and a balance on the other. Would not the Senator expect that Madison would have expected this Senate and this Congress to defend its prerogative to set policies concerning marriage and family and resist the encroachment of that power from the courts?

I would follow up on that. I remember when I was a U.S. attorney in Alabama, I got a call from an educator who was looking at their school textbook and discovered it asked a question about amending the Constitution. The first section stated that you amend it according to the way the Constitution says it should be amended. And the second paragraph says the Constitution is amended by the courts.

He asked me: You are the Federal attorney here; is that true?

I said: No, it is not true.

And he asked me to do a video.

But the point is that you are right, I say to my colleague, Senator Santorum. This judiciary believes it has the power to amend the Constitution by taking words such as ``equal protection'' or ``due process,'' which in the hands of a person not disciplined can be made to say a lot of different things. But good lawyers and good judges know that can be abused and they do not do so.

I think we are at a point where the American Republic has its democratic heritage at risk-- if we just get to the point where we can never respond, if they can make these rulings and the Congress can never pass an amendment to overturn them, or set our own policy on behalf of the people.

I couldn't agree more.