Federal Marriage Amendment

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.

Mr. President, in response to the Senator from Nevada, I appreciate his offer. I suggest we continue to work together to see if we can come up with a plan on how to proceed. It would be optimal to have a vote, a substantive vote.

As the Senator from Nevada may not be aware, there are different opinions on how to best address this issue. There are a couple of other proposals that have been floated out there that Members on our side would like to vote on by way of amendment to the underlying legislation.

This is an important piece of legislation. It is a piece of legislation on first impression here to the Senate and, given the importance of this legislation, it begs a full debate and the opportunity for different points of view to be expressed through the amendment process. While I appreciate the chance for an up-or-down vote on the Allard text, I do know of many Members who have different ideas and would like to see those ideas be reflected by way of amendment.

At this point, we are not capable of agreeing to that but we would be anxious to work with the Senator to see if there is some construct we can put together to allow this issue to be fully debated for those who have different

points of view with respect to how to deal with this very important issue of protecting traditional marriage, that they have their opportunity to express their language, their preferable constitutional amendment as opposed to the one the Senator from Colorado has put forth.

I yield the floor.

Mr. President, I appreciate the willingness of the Democratic whip to agree to having substantive votes because I think it is important to have a substantive vote. As someone who is a cosponsor of the amendment, I will assure you, I have no desire to have anything but an up-or-down vote on the amendments that have been talked about over here on this side of the aisle.

The point I would simply want to make to the Senator from Nevada is, No. 1, this issue has had many hearings. There have been seven hearings in congressional committees, four in the Judiciary Committee, ranging from one that was on September 4 of last year, one on March 3 of this year, one on March 23 of this year, and one on May 13. The first three were in the Judiciary Committee. The Subcommittee on Science, Technology and Space had one on May 13. The Finance Committee

had one on May 5. The HELP Committee had one on April 28. And recently, the Judiciary Committee again had one on June 22. So there have been seven hearings.

This issue has been studied. As a result of the study, there are predominantly two different tracks people would like to take here. You have many who are supporting Senator Allard's approach. There is another approach many Members on our side would like to take. All we are suggesting is that at least those two ideas be given the opportunity to be voted on.

I do not think we are going to look for a whole long list of amendments. My guess is we would be content with one amendment to provide a little different option for Members on both sides of the aisle to look at, and maybe both sides of the aisle to be supportive of. This may be a situation where we have options available that can attract bipartisan support. Obviously, Senator Allard's amendment has bipartisan support; Senator Miller is on that amendment.

It sort of bothers me a little bit when I hear the comment made--and it has been made over and over, not only here on the floor but by many pundits--about we have more important things to do. I cannot think of anything more important to America than family and marriage. I cannot think of anything more important than the basic social building block of our country, and that is what marriage is, that is what the family is. And it is in jeopardy. It is in serious, real jeopardy as a result of what the courts are doing--certainly in Massachusetts and potentially around the country--what mayors are doing, what county executives are doing, and others who are unlawfully acting. But in the case of Massachusetts, under the color of law, at least, or maybe lawfully, if you concede that, they are reinterpreting the Constitution to change the definition of marriage.

Now, to me, that is a very serious issue. I cannot think of a more important issue to come before the Senate than to say: What should the future of our culture look like? I think we need to do that in a way that is thoughtful and that is open to different ideas on how to address this issue, because one person, as well meaning as he may be-- and I strongly support his amendment--he has one idea, a group of us have an idea. But there are other ideas out there that should be considered when this very important issue is debated. Why? So we can find the sweet spot, we can find what can build the greatest consensus in the Senate to do something to protect an institution which is at the core of who we are as a culture.

While I would say, yes, as we say around here, we try to keep the trains running on time and passing appropriations bills, I think the chairman of the Appropriations Committee, who happens to be the Presiding Officer at this time, will tell you we are not ready to pass all the appropriations bills at this point, that we are still waiting for the House to act and to do things to put us in position to deal with that. There are important issues at hand, but I cannot think of anything more important than this issue.

So I say to the Senator from Nevada, I would hope he would constructively engage in negotiation with us so we can have a full and fair debate, so we can have different alternatives so the Senate can work its will and hopefully try to find some language that will accommodate a supermajority of Members. I haven't heard any Member come down here and debate the substance of this issue. I suspect I will not hear any Member of the Senate come down here in the next 48 hours or longer and say that marriage should be something other than one man and one woman. There may be, but so far I have not heard that in the Senate.

Most who are opposing the constitutional amendment do so for a variety of reasons but not because they don't support the definition of traditional marriage. If that is the case, I would think we would want to work hard to try to find some way in which to protect this institution. Everybody admits, even those who are not for this constitutional amendment that has been proposed, that traditional marriage is under assault in the courts. Some would suggest this is an issue we just should not deal with. Some would suggest this is too heavyhanded a way.

Let's bring some people together. Let's bring the debate together. Let's see if we can find the language that would address this issue and stop what I believe is the death knell of our society, which is the ultimate breakdown of the traditional family and the meaning of that to future generations of children.

I know the sponsor of the amendment is here. I will yield the floor to allow him to speak. If the Senator from Nevada has a comment, I would be happy to yield.

Mr. President, I was not here on Friday, so I did not get a chance to hear a lot of the debate going on. I commend my colleagues. I read some of their statements. I thank them for the high level of debate that has taken place so far.

Whether it was Senator Smith's comments, or Senator Cornyn's comments, or Senator Allard's, and others, they are trying to bring to the debate two fundamental points, which are that every person in America, every person in this world, has worth and dignity and we should respect them, irrespective of the choices they make in their lives. That is an important concept that I hope we do not stray from in this debate; that this is not a debate about questioning the value or worth of an individual or the dignity of an individual or the rights of an individual. What this is about is the fundamental importance to our society of preserving, protecting, and promoting marriage as a union between one man and one woman.

So I hope we can engage in a debate where we can keep both things in mind, because sometimes it is thought that if you are for traditional marriage, somehow you are against somebody. That is not how I see it. I think traditional marriage is good for everyone. It results in a healthier society, more stable children.

I am going to refer throughout the course of my remarks over the next couple of days to a paper that was presented at Emory University on May 14, 2003, which I think is one of the best studies I have seen in looking at this issue of marriage. One of the reasons I think it is so good is, No. 1, it responds to all of the allegations or charges made against those who support traditional marriage. It is authored by two people, one of whom is gay. So you are hearing arguments from someone who you would think normally would agree that traditional marriage should be redefined; in fact, he argues in this paper, quite effectively and forcefully, that traditional marriage is important to be maintained--not because he thinks it discriminates against him, but because it is important for our culture and society.

I want to read a few things from the summary of that report just to give people a sense of why this is such an important issue to be debated. In this country, we tend to take marriage for granted, thinking that somehow or another it will just happen, that people will get together and marry and will have children, whether we have an institution called marriage or whether that institution of marriage is redefined to include a whole host of other different relationships that really won't affect the basic traditional marriage. In other words, some might say, how will my relationship affect me? How will that affect your marriage?

Well, let me address that because I think this summary does a pretty good job in doing this. The name of the article is ``Marriage Ala Mode; Answering

Advocates of Gay Marriage,'' by Professor Katherine Young and Paul Nathanson.

The summary begins:

There's nothing wrong with homosexuality. One of us, in

fact, is gay. We oppose gay marriage, not gay relationships.

They go on to say:

Most people assume that heterosexuality is a given of

nature and thus not vulnerable to cultural change, that

nothing will ever discourage straight people from getting

together and starting families. But we argue--and this is

important--that heterosexual bonding must indeed be

deliberately fostered by a distinctive and supportive

culture.

Because heterosexual bonding is directly related to both

reproduction and survival, and because it involves much more

than copulation, all human societies have actively fostered

it. . . .This is done through culture: rules, customs, laws,

symbols, rituals, incentives, rewards, and other public

mechanisms. So deeply embedded are these, however, that few

people are consciously aware of them.

Much of what is accomplished in animals by nature

(``biology,'' ``genetics,'' or ``instinct'') must be

accomplished in humans by culture (all other aspects of human

existence, including marriage). If culture were removed, the

result wouldn't be a functioning organism whether human or

nonhuman. Apart from any other handicap would be the

inability to reproduce successfully. Why? Because mating

(sexual intercourse), which really is largely governed by a

biological drive, isn't synonymous with the complex behaviors

required by family life within a larger human society.

What are they saying? Will heterosexuals continue to copulate, have sexual relations? Sure. Will they build families. Nobody is suggesting that if we get rid of the definition of traditional marriage, there is going to be a explosion of nontraditional marriage. That is not what they are saying or what I am saying. I suggest that in those countries that have, in fact, adopted whether it is same-sex marriages or civil unions, they have not seen a traumatic growth in the number of same-sex unions or same-sex marriages. In fact, there have been very few of them in the countries that have adopted those laws.

But what has happened? There is a gradual and systematic decline in heterosexual marriages, not heterosexual unions. People will continue to hook up. In fact, that is what occurs more and more in cultures, even in this country, where marriage is not held up as something that is important. We see it around us. There are cultures and subcultures in America where marriage is seen to be an older, passe convention.

What happens is there is actually more sexual activity, certainly among multiple partners and, what? Breakdown of the family, children being born out of wedlock, and communities and cultures in decay. That is what I see on the horizon for America.

It is not the reaffirmation of marriage by including more people in it but the degradation of marriage because it becomes simply a social convention without meaning. One may say: What is the big deal? What is the problem if that happens? The problem, if we look at communities in America where marriage has broken down, we see communities that are not functioning very well. We see children who are the most at risk in our society because moms and dads are not around the home to provide for them. So we have community breakdown, we have family breakdown, and we have government intervention trying to repair this situation.

There have been huge government expenditures over the last 40, 50 years trying to repair what is broken as a result of the family not being there to raise these children.

I was a student at Penn State many years ago. I always like to get back to my college campus. A few years ago, I went to speak to a group of students, the editorial board of the Daily Collegian. The Daily Collegian is the college paper. I am not sure that in the 14 years I have been in public life they have ever said anything positive about me. Nevertheless, I went to meet with them.

We had a very animated discussion, as one tends to have on college campuses with young people with vibrant ideas and a zeal for ideology. We were disagreeing on everything, not surprising. I do not know how it came up--I have been digging my memory banks and I cannot remember exactly how it came up--but I asked the question, What do you see as the biggest problem facing America? One young man in the back raised his hand and said: The breakdown of the traditional family. The breakdown of the family.

I thought immediately when he said that, first, he must not have been engaged in the discussion for the previous half hour, and I thought he would be laughed at and ridiculed by others around the table. What I found was unanimous agreement. One after another of these young folks, who would not be considered traditionalists or conservatives, went on about how the breakdown of the family is sort of at the root of the instability or insecurity they are feeling in their lives and that the culture is experiencing at this time. They talked about divorce. They talked about how marriage was not what it used to be.

In fact, there was a survey done where they asked kids in the 1970s whether divorce should be harder to get, and about 50 percent of the kids said, yes, divorce should be harder to get.

They asked a similar group of kids 25 years later, in the late 1990s, whether divorce should be harder to get, and 75 percent of the kids now say divorce should be harder to get. Why? Because they realize the impact of the breakdown of marriage and family.

One of the criticisms we hear from those who oppose this constitutional amendment is: Marriage is already in very bad shape. Divorce rates are high. Marriage does not work already in America. This is no big deal. You cannot really hurt marriage.

I make the opposite point. I think it is obvious. They are right, marriage is already in tough shape. Many commentaries have said heterosexuals have messed up marriage as bad as they can in this country and in other countries around the world.

I make the claim that further deluding and debilitating marriage is not the answer because we know of the dire consequences that a breakdown in marriage results in with respect to children.

I make the opposite argument: Yes, I would argue divorce laws should be tougher. I agreed with Louisiana when they put in covenant marriages. I believe the no-fault divorce laws in the 1970s changed the essence of marriage, which is about a man and a woman entering into a selfless relationship, a union on which they would further give of themselves in the creation of new human life and nurturing that life. It was a selfless act, giving of oneself, giving up things to each other. That is how successful marriages work, and that is how successful marriages nurture successful children.

With no-fault divorce and with the culture that came along with it, we have marriage being about adults, not about children. It is no longer about forming a union for the raising of children in the next generation. It is about: Am I happy in my marriage? Am I being fulfilled? It is less selfless and a little bit more selfish.

So if we look at this next generation of marriage, what is that? Is it about the selfless or is it about the selfish definition? Is it about children? Certainly a change in the definition of traditional marriage to include people of the same sex is not about children, it is about adults. That further takes us away from the central principal purpose of marriage, which is the bonding of a man and a woman for the purpose of creating a union by which children for the next generation are born. So we continue to get further away from the ideal, and when we do that, children suffer and cultures die.

I repeat, I do not know why people come here and insist that somehow this is not important; that somehow this discussion does not rise to the level of a constitutional amendment. That is another real funny one. I am sure that was discussed on Friday. The Presiding Officer gave an absolutely brilliant opening statement on Friday, and I commend him for his wonderful statement. I know he knows what the last constitutional amendment was.

I have heard two complaints about constitutional amendments: This issue is not important enough to rise to a constitutional amendment. That is No. 1. This is not important enough. No. 2, this limits rights, and no other constitutional amendments have limited rights.

The last constitutional amendment, the 27th amendment to the Constitution, limited pay raises for Members of

Congress. So let's throw out the limiting rights. My rights have been limited as a result of the 27th amendment. As a Member of Congress, we cannot pass a pay raise and accept it midterm. Constitutional amendments have been used to limit rights.

No. 2, this does not rise to a level of importance. I do not think in the grand scheme of things whether Members of the House and Senate can receive a pay raise during their term is one of the great pressing issues that face our culture and our country. So the idea that the Constitution is not used for issues that are not of great weight and do not limit rights is ridiculous.

The second point is, I do not believe this limits rights. What this does is promote a public good. It does not limit rights. It simply promotes a public good, and it is the union of a man and a woman for the purpose of forming that union and providing for the next generation.

I suggest this constitutional amendment is necessary and is important enough to be debated today. Again, I hope we can come up with some agreement that will allow the different points of view as to how we solve this problem, and maybe some other points of view from the other side of the aisle as to how we solve this problem.

To get to the bottom line of this debate, the bottom line is children need mothers and fathers, and society should be all about that. Society should be all about creating the best possible chance for children to have a mother and a father. Unless the State endorses that, unless our laws enforce that, then I think it is fairly obvious that our culture will not, and that left to our own devices, as these authors say, we will simply not have these unions.

In fact, if we look at other countries, Stanley Kurtz has done some research in countries around the world where this has occurred. In his article, ``Decline in Marriage in Scandinavia and the Netherlands,'' he talks about the reduction in the rate of marriage among heterosexuals. He talks about the increase in the number of children born out of wedlock as a result of the institution of a different definition of marriage. So we see in other countries that when marriage is changed, it is devalued. It does not become special. It does not become unique. It is not reinforced by society as something as the ideal. As a result, people do not engage it.

For example, the countries of Denmark, Sweden, and Norway have either marriage or civil unions for same-sex couples. Sixty percent of first- born children in those countries are now born out of wedlock. Now, that is equivalent to some of the poorest neighborhoods in our society. Remember, I talked earlier about how the breakdown of marriage has affected the poorest communities in our society and our culture, and in many of those cultures marriage is not accepted, and as a result the Government has to come in and bail out those communities because there are no unions, there are no families, there is no support network for these children? In middle-class and upper middle-class, socialistic, equality-driven Scandinavia, where there are no ghettos of poverty that we see in America, 60 percent of first-born children in these countries are born out of wedlock. Why? Because marriage is not important. It has no meaning. So people simply do not get married.

There is a long laundry list which I will get into in more detail. I am trying to make a general overview of some of the arguments, but I will be getting into more detail throughout the next couple of days.

Marriage is about children. Marriage is about the glue that holds the basic foundational societal unit together, and that is the family. When we change the composition of that glue, we weaken the bonds of marriage and then we weaken the American family.

Why a constitutional amendment? I think the Senator from Colorado said it, and I know others have, too, that if we really believed we could solve this problem short of a constitutional amendment, let me assure everyone I would not be on the floor of the Senate today arguing this issue. This is hard. It is hard to come to the Senate floor and argue for any constitutional amendment. It is doubly hard to actually pass one because 67 votes are needed in the Senate, plus three-quarters of the States. If we could come up with a legislative solution that would solve the problem that I see of runaway courts, I would be very anxious to find it. We tried back in 1996 with the Defense of Marriage Act, but just about every legal scholar who has come around has said the Defense of Marriage Act will not stand, from the left to the right, and I will get into that in further discussion.

I see the Senator from California is in the Chamber, so I am not going to spend much more time, but the idea that we could pass a statute to constrain the courts from reinterpreting the Constitution I believe is folly. We cannot. The only way for us to have the American people define what marriage is, instead of State courts defining what marriage is, is through the constitutional amendment process.

Some will get up and say, let us leave it to the States, let the States fight this, like Massachusetts is doing, let the States fight this battle. What we are seeing in Massachusetts is the States cannot fight this battle. Ultimately, if one looks at the Lawrence v. Texas decision and the full faith and credit clause, there is no question in my mind that the States will be powerless to defend themselves against these runaway judges.

In essence, the Constitution will be amended. It will either be amended by a group of State judges who will grab from the language of the Constitution a right for anybody to be married to anybody else or the American people through the process that was established in our Constitution, which is a very difficult process.

As a citizen, it is rather upsetting to look at the Constitution as a document and say, well, to create new rights under the Constitution we have to have two-thirds of the Senate, two-thirds of the House and three-quarters of the State legislatures, or four judges in Massachusetts. I looked through the Constitution many times and I never saw that four-judges-in-Massachusetts clause, but that is what goes on. We either do it that way or go through this complex process that is very hard. Why? Because constitutional rights are big deals. It is an important thing. We should not create new rights in our Constitution without a very deliberative, thoughtful process, and the American public should be engaged in that process. That is what we are about today. We are about engaging the American people in the thoughtful process of determining what marriage should be in America.

I would argue that those who oppose this process are saying one thing: Let the courts do the work that I do not have the courage to stand up and fight for myself. Let's be clear about that. Let the courts do the work that I do not have the courage to articulate for myself. Oh, we will all get up and say we are for traditional marriage and we like traditional marriage. If my colleagues are for traditional marriage, there is one way to make sure it is maintained. They can say, I do not like this idea or I do not like that idea, but there is one way to make sure, if they are really for traditional marriage, if they really believe this is an important building block of our society, if they really believe marriage is about the union of one man and one woman for the purpose of the future of our culture, there is one guaranteed sure-fire way to make sure that is maintained, and that is through a constitutional amendment.

Now, my colleagues can argue until the cows come home that they do not like this way of doing that, and that is fine, and that there are other alternatives to pursue, but if they really care about preserving one man and one woman in a union called marriage, there is one sure- fire way to do it, and that is to vote for a constitutional amendment that does it. Any other excuse is simply that--an excuse to let someone else do their dirty work.

I do not hear any of my colleagues who say this is not the way to amend the Constitution writing letters to the litigants in Massachusetts and 11 other States who are suing to change the marriage laws in those States to allow for a redefinition of marriage. Where is the outrage? Where are they writing saying, oh, we do not think that is the way it should be changed, either. We do not hear them criticizing those who want to change traditional marriage and saying do not do this, do not file

these lawsuits, do not seek to have these marriages recognized. We hear nothing. We just hear, we will just let someone else handle this.

All it takes for this change in marriage in America is for well- meaning, good people to moderately, deliberately, simply do nothing-- just sit back, claim their virtue, claim their belief in one man and one woman in marriage, and allow someone else to change it, and then come and say, well, it is too late, or we cannot take marriage away; these people are already married. How can we take that right away?

If my colleagues believe in their heart, for the betterment of America, that marriage must be maintained for the good of the American family as a union between a man and a woman, there is only one choice, and that is to vote yes. Anything short of that is a hollow act, is a smokescreen, to the American people and to their constituents. My colleagues cannot claim to be for something and then vote against it and let someone else do the exact opposite of what they say they want, and that is what the courts will do. So I plead with my colleagues, who I believe have every good intention, to search their souls and to think about the consequences for America.

Because other speakers have arrived, I will yield the floor in a minute. I know people come with good intentions and I know people do not want to be seen as intolerant, and they do not want to be seen as hateful or mean spirited or being against anybody.

It is not easy, standing up against this popular culture in which we live. But think about the future of America. Think about the future of America without the institution of marriage because that is what we are debating. It is not a matter of redefining marriage. It is simply that marriage will be a social convention which will have no meaning and therefore we will be without it.

Think about the future of children in America, where we say they do not deserve a mother and a father and that we are not going to give them the legal force to encourage it and hold it up as the right thing to do.

Look in the faces of those children and say: You just were not important enough for us to stand against what is very unpopular in the culture of today. I daresay, this debate, this vote, this issue will be read in history books in America--I hope in America--years from now as that turning point. I hope my colleagues are on the right side of history.

I yield the floor.

Will the Senator from Arizona yield for a question?

The last point my colleague made is one that is very important. A lot of people in the Senate, and even some across the country, have suggested that the Defense of Marriage Act will stand.

There is a lot of legal opinion. The Senator from Utah spoke about how the Defense of Marriage Act probably will not stand. But your point is, even if the Defense of Marriage Act stands, the Defense of Marriage Act only protects States from other States forcing their laws on us.

Your point is even if that State can resist that, you lose anyway. Can you explain that? I think that is a very important point. The Defense of Marriage Act really doesn't save marriage.

The potential exists if DOMA is maintained and protected that you could have--let us just say some of the more liberal State courts that we have out there, whether it is Massachusetts, New Jersey, California, New York, big States--most of these are actually fairly large States that we are talking about--if marriage were defined in those States and let us say not in Pennsylvania, Arizona, Utah, or Alabama, what would be the result? How would America function? What would marriage be in America? What would be the environment in which we would be living? It is a very interesting question we are now faced with just in Massachusetts, but we have sort of seen one isolated little case that is still in question. But as an accepted matter that there are now in many States potentially couples who are married who are not traditional couples, what would be the impact on our society?

I thank the Senator.

Mr. President, I ask unanimous consent that that the order for the quorum call be dispensed with.

Mr. President, I ask unanimous consent to be able to speak for such time as I may consume.

I thank the Chair.

Mr. President, I congratulate both the Senator from Mississippi and the Senator from Texas for their excellent comments and for adding to this debate.

I think one of the main facts we tend to overlook in this institution is the importance of the debate--the importance of engaging in a subject matter and having a colleague focus on an issue and having the American public focus on an issue.

I think in a very short period of time the issue of marriage actually has come to the fore in America--to actually start to think about what marriage is. What is the purpose of marriage? What is it all about, and how does it fit into American culture?

I told the story when the Massachusetts decision was first handed down about being questioned by college students. As the Presiding Officer knows, we are constantly bombarded by high school and college students who come down and visit with us. It is a wonderful thing when you get a chance to stay in touch with what the young mind is thinking and the popular culture they are influenced by.

Once Goodridge was handed down, I would get the question, How do you feel about changing the definition of marriage? I would enter into a discussion. I came up with the idea of asking those young people, before I answered that question, What is the purpose of marriage? Absolutely without fail, for about a 2-month period of time, as I would do that almost on a daily basis when we were in session because the issue was a hot issue at the time, I would get three or four hands going up. The answer would be to affirm the love between two people. That was the answer.

I would ask several other folks, generally speaking, some sort of variation on that theme. There would usually be some young man--usually a young man, occasionally a young lady, in the back, always in the back--who would put his hand up and sheeplishly say something like procreation and rearing of children.

I have to tell you that for a several-month period of time, when that young man or young lady would raise their hand and would say that, the majority of the kids in the group would laugh, which somewhat startled me. Then, of course, I would say I agree with that man in the back or that young lady in the back about the principal purpose of marriage. Yet to many of our young people that was not something which was considered. The only thing that was considered was about them in a sense. Consider yourself. Why do you want to be married? Well, to make me happy, to join me with someone I love. That is what marriage is about. It is about me.

I would suspect, if you went back and talked to your grandmother or great-grandmother, and you asked what the purpose of marriage is, they would probably give you a very different answer. Thankfully, I am getting a different answer now when I ask that question. More and more people are saying what that sheepish young boy or young girl would say in the back, and there are fewer and fewer laughs when they say it is about children.

I can only give as a reason for that the fact that we have had this debate as to what marriage means and the importance of it to our society. It is like the oxygen we breathe. We breathe it and we know it is there. It is essential to life, but we sort of take for granted that it is just going to be there. That is our bodily function because it is just going to be there. The body politic, the body, the social body, that culture that is in America sort of takes marriage for granted. When we see places where marriage maybe has been taken too much for granted or simply been pushed aside as something that isn't necessary, we see how culture and society suffer greatly.

One of the things I wanted to do in the little time I have here--and I think the Senator from Kansas is here, and I know he wants to speak-- is talk about what the purpose of marriage is. Why is this issue so central? We tend to talk about what the need for this amendment is and get sort of wrapped up in the procedure.

I think one of the great blessings of the Senate is an opportunity to debate, educate, and to think through things.

I earlier quoted a study by professors Young and Nathan. I will go through a little bit more of this article. But they lay out in a paragraph of the study the purpose, if you will, the reason for marriage, and why society must encourage it.

As I mentioned in my earlier comments, if society doesn't encourage marriage and fidelity between a man and a woman, the natural inclination is certainly--as I think we have seen in many subcultures in America--not to be faithful, not to be responsible fathers, not to be involved with a woman for a long-term commitment. This is something which, if not nurtured by culture, could cause us to evolve very quickly into a rather self-absorbed, self-centered culture, with men being the principal stirrer of that lethal cocktail in America.

But to quote professors Young and Nathan:

The culture of marriage must encourage at least five

things. A, the bonding between men and women that ensures

their cooperation for the common good; B, the birth and

rearing of children, at least to the extent necessary for

preserving and fostering society in a culturally approved

way; C, bonding between men and children so that men are

likely to become active participants in family life; D, some

healthy form of masculine identity which is based on the need

for at least one distinctive, necessary and publicly valued

contribution to society and is especially important today

because the other two cross-cultural definitions of manhood,

provider and protector, are no longer distinctive now that

women have entered the public realm; and E, the

transformation of adolescence into sexually responsible

adults so young men and women are ready for marriage and the

beginning of a new cycle.

So why do we support marriage? Why do we hold up marriage as a special institution to which we give prestige and esteem, that we support with cultural and social norms, to which we give

legal preferences, legal protection? Why do we do this as a culture? Why has every culture in the history of man provided the same kind of nurturing and support for husbands, for men and women to become husbands and wives and fathers and mothers?

We do this for the reasons that are laid out here--at least for these reasons laid out here. Some of them are really interesting, if you dig into them as to how, without this kind of nurturing, we can see very clearly how our society would be harmed.

I haven't heard anybody get up and argue that marriage between a man and a woman is bad. I haven't heard anybody get up and suggest that we should change the definition of ``traditional.'' In fact, I haven't heard anybody here, nor do I expect to hear anyone here, advocate for the States to change the definition of traditional marriage.

One wonders if there is unanimity of opinion as to what marriage is. And I suspect, although I would be happy to hear people come forward and disagree with these elements that I have just laid forth--but if there is agreement as to what marriage is and the purpose and the benefits of society for marriage, why are we so reticent in doing what we know for sure will protect that institution?

Again, Members can make the arguments up and down that there are other ways we can protect marriage: The States can do it, the State courts can do it, the legislatures can do it, the DOMA statute, or the House, which is looking at some sort of limitation of jurisdiction. We can look at a whole variety of different things and say this could work, this might work, this may happen, but ultimately we know for sure one thing will work. A constitutional amendment defining marriage will, without question, work.

We have to ask ourselves, if marriage is this institution so critical to the future of our society, it is so foundational for our children and for men and women to build these bonds for the common good--and after the Senator from Kansas speaks, I will go through chart after chart of the benefits children gain from being in a married family--if we accept that social good, then why is there not overwhelming support for something most people even 10 years ago would have said: This is common sense. Of course marriage is between men and women. We do not have to put that into the Constitution. Everyone agrees with that.

Yes, everyone agrees, but Members will stand up in the Senate and say: We all agree with that, but it does not belong in the Constitution. Marriage is not important enough. Families are not important enough to be protected by our Constitution, to be protected from rogue judges who say things like marriage is a stain on our laws that must be eradicated.

I believe ultimately we will protect marriage. Let's start now. Let's come together and make some commonsense decisions about protecting the institution that is so valuable to this country, that we know is a public good. We can do that starting this week.

Mr. President, I am glad to hear Senator Allard say he welcomes the debate because that is the reason I came to the Senate floor today: to debate this issue. As someone who has been married 42 years, as a Democratic woman, I believe I can talk about marriage and what we need to do to strengthen marriage.

Unfortunately, there is not one item on the table here that strengthens marriage and helps people stay married, that helps the family, and that is going to be part of what I talk about.

It is interesting that Senator Allard said there is a great difference between Republicans and Democrats on this issue. I beg to differ with him. You cannot say you stand and speak for all Republicans today. In the ``Roll Call,'' it says:

True Conservatives Oppose the Federal Marriage Amendment.

George Will:

Amending the Constitution to define marriage as between a

man and a woman would be unwise for two reasons.

Constitutionalizing social policy is generally a misuse of

fundamental law. And it would be especially imprudent to end

state responsibility for marriage law at a moment when we

require evidence of the sort that can be generated by

allowing the states to be laboratories of social policy.

That is George Will, a Republican syndicated conservative columnist.

Then we have Lynne Cheney, wife of Dick Cheney, a Republican:

I thought that the formula [Dick Cheney] used in 2000 was

very good. First of all, to be clear that people should be

free to enter into their relationships that they choose. And,

secondly, to recognize what's historically been the

situation, that when it comes to conferring legal status on

relationships, that is a matter left to the states.

That is none other than Lynne Cheney, the wife of the Republican Vice President, a Republican herself and conservative.

Then there is Bob Barr, former Congressman from Georgia and author of the Defense of Marriage Act:

Marriage is a quintessential state issue. The Defense of

Marriage Act goes as far as is necessary in codifying the

federal legal status and parameters of marriage. A

constitutional amendment is both unnecessary and needlessly

intrusive and punitive.

Bob Barr.

Senator Alan Simpson, a former Senator from Wyoming, Republican conservative:

A federal amendment to define marriage would do nothing to

strengthen families--just the opposite. And it would

unnecessarily undermine one of the core principles I have

always believed the GOP stood for: federalism.

That is Alan Simpson, a former Republican Senator.

Then Lyn Nofziger, former White House Press Secretary and assistant to President Ronald Reagan, a Republican:

There are two kind of amendments. One kind would give the

federal government more authority, usually at the expense of

the states, and broaden its intrusions into the lives of its

citizens. These include--

And he lists the ones with which he disagrees, with which I do not agree. He says the equal rights amendment would do that. He also says that proposals to ban same-sex marriage and abortion would violate federalism.

He says:

I favor neither of the latter two but I oppose

constitutional amendments that would ban them.

In other words, he agrees that gay marriage is not what he supports, but he does not believe in this constitutional amendment.

Mr. President, I say to Members of the Senate and anyone else listening to the debate, let's be clear, when the manager stood up and said Republicans and Democrats have a different approach, he forgot about a few Republicans who do not agree with him: George Will, Lynne Cheney, Bob Barr, Alan Simpson, and Lyn Nofziger. And by the way, quite a few on his side of the aisle stated they do not support the amendment. Let's be clear here, this is not a question of Republicans versus Democrats.

After today, we have 27 legislative days until adjournment--27 legislative days to deal with the most pressing issues of the country.

There were three developments around here in the last few days that underscore the work we should be doing right now.

First, we were all summoned to the secret briefing room here in the Capitol and told we were under the threat of attack from al-Qaida between now and election day. Why is it that I can tell you this if it was secret? Because it has been all over. Immediately from that room came Tom Ridge, the head of the Department of Homeland Security, to a press conference to announce this threat. This is serious. Let's put up what Tom Ridge said so my colleagues can see it for themselves:

Credible reporting now indicates that al-Qaeda is moving

forward with its plans to carry out a large-scale attack in

the United States in an effort to disrupt our democratic

process.

July 8, 2004.

I have a question to my colleagues in the Senate and to all Americans who may be listening to this debate: What is more important to you, what is more a threat to you--al-Qaida moving forward with its plans to carry out a large-scale attack in America to disrupt our democratic process or two people who happen to be of the same gender moving in together down your street?

Let us be honest. However we feel about gay marriage or civil unions or domestic partnerships, however we feel on those matters, what is more of a threat to you and your family? You need to ask that question, put aside politics, and whatever answer you come up with, I have to believe most would say al-Qaida, not Mary and Carol or Jim and Carl, but al-Qaida, people whose names we do not know.

That is the first thing that happened last week. What else happened. A new report was released showing that the intelligence of our country is in disarray, intelligence we relied upon, intelligence that was used to make the case for war where more than 800 of our beautiful Americans are dead and 5,000 or more of them are injured, some without legs, some without arms, some who will never be the same, most of whom will never be the same.

What is more important to America today? Fixing the intelligence problem--we do not even have a head of the CIA; maybe it is time we thought about getting someone to be permanently in charge--or worrying about two people of the same gender who move in together down your street? I believe you need to ask yourself that question as you watch us in the Senate in this debate: What is more important to you, to your family, to your security, to your children?

Some of you are worried about a draft; you are very worried about a draft. What is more important--fixing our intelligence, making sure al- Qaida cells are drummed out of this country?

By the way, I looked at reports from this administration 30 days after 9/11, and do you know what they told us? Al-Qaida was in 45 countries, including America. Not one cell was in Iraq. Instead of going after al-Qaida, we turned around and went into Iraq based on faulty information.

Our people are dead and dying to this minute, to this day, to this moment. I visit them at Walter Reed, and I see the damage done. There are many Californians. I pay tribute to every one of those brave, unbelievably patriotic, caring members of the armed services who have given their lives with honor, deep honor when your Commander in Chief asks you to sacrifice yourselves for a decision he has made. You are honorable. And, no, you did not die in vain when your Commander in Chief asked you to go. Of course not.

I ask you, with our people dying every day, with the intelligence failures we have seen--and by the way, in my opinion, not only was the intelligence wrong, not only was it misused, not only was it misinterpreted, it appears to me there was pressure brought to bear to skew that intelligence, and that is the next phase of our inquiry that we will go into.

What kind of pressure was put on people to come up with an opinion? How does that relate to all of this? Because we are not talking about ways to stop al-Qaida. We are not talking about ways to fix our intelligence. We are talking about amending the Constitution of the United States, which is a very serious thing to do. It has hardly been done in the history of our Nation. Our forefathers were brilliant about making a constitution that is so flexible that we do not have to amend it every other day, but that is what we are doing about two people of the same gender who may want to care about each other. That is what we are doing today. That is what we did yesterday. That is what we did Friday. That is what we will do tomorrow. If the Senate proceeds, that is what we will do for the immediate future.

I hope the Senate will not proceed to it with all that we have to do.

There is a third thing that happened. In addition to being warned by Tom Ridge, in addition to being told by a bipartisan committee that our intelligence is in disarray in this country, there is something else new. We have news yesterday that discussions are being held within this administration about whether and how to possibly postpone elections if there is an attack on election day or in and around election day.

To this Senator, to even consider postponing our elections, the most ardent symbol of American democracy, because of terrorist threats is nothing more than allowing the fear that they bring to rule this country. This country is too strong for that. This country is too great for that. With our men and women overseas, literally dying for the rights of other people to vote, how could we even consider postponing the election?

If this administration is so concerned about the possibility of terrorist attacks--and to listen to them and to read this clearly they are--and if they are even seriously thinking of disrupting the centerpiece of American democracy, then our priority in the Senate and in the administration should be how to best defend against those attacks, not how to close polling places. Talk about misplaced priorities. It is worse than Alice in Wonderland. One has to pinch themselves, in light of all that we know, that we are more worried as a Senate about two people of the same gender caring about each other wanting to visit each other in the hospital than we are about these unbelievable threats that are facing our Nation, and we are not doing anything about that.

Let me tell the American people who may be listening, as well as my colleagues, what is not being done to make them safer. We do not yet have a port security bill which has been voted

in a unanimous fashion out of the Commerce Committee. It would create command and control centers to improve security at America's ports. There has been no action by the full Senate.

My understanding is the bill was going to be brought here and there were difficulties with it on the other side of the aisle; the Republicans did not want to bring it up. Rail security, another bill voted unanimously out of the Commerce Committee, on which I serve, again there has been no action by the full Senate.

I have to say, in every report one reads Madrid is mentioned. The rail security problems are major.

So here we have a port security bill that unanimously came out of the committee, a rail security bill that unanimously came out of the committee, and those on the other side, the Republicans, are objecting to bringing those bills forward.

Transit security, $5 billion over the next 3 years to improve security on local transit systems approved by the Banking Committee in May, and there has been no action by the full Senate. Nuclear plant security, a bill to assess threats to and require improvements at nuclear facilities approved by another committee that I sit on, the Environment and Public Works Committee, there has been no action by the full Senate. Chemical plant security, a bill to require chemical facilities to have and implement a new security plan to protect against terrorist attacks approved again by the Environment and Public Works Committee October 2003, no action by the full Senate.

Airline security, the administration is cutting the number of air marshals. I had the privilege of writing the language in the air security bill that we passed after 9/11 to put air marshals on high- risk flights. What do we see? Cutting back on air marshals, not training enough pilots for the Federal flight deck officer program that allows for pilots to carry a weapon in the cockpit if he or she is trained as a sky marshal. The administration is not moving forward with that at all. They are slow-walking it. They have approved only a few pilots.

What about the threat of shoulder-fired missiles? I have been working on that with Chuck Schumer, Steve Israel, and others. They are slow- walking these countermeasures. We know there are tens of thousands of shoulder-fired missiles. Terrorist groups have them. They can buy them for very little money on the black market. We know that aircraft have been shot at and shot down. What are we doing about it? Again, slow- walking this.

While Air Force One is protected when the President travels, he has countermeasures on that plane, and I fully support it and thank goodness we have it, but if we can do it there--and in Israel they can protect their commercial airlines--why can we not do it here? I will tell my colleagues the reason. The other side does not want to bring up these issues. They want to worry about two people of the same gender caring about each other and they are going to make a whole deal over this for days and days.

We have been warned over and over again. The FBI warned us a long time ago about the threat of shoulder-fired missiles. They are slow- walking that. They are holding the port security bill at the desk, the rail security bill at the desk, the transit security bill at the desk, the nuclear plant security bill at the desk, the chemical plant security bill is being held at the desk.

How about the COPS Program? We all supported that. We want to put 50,000 more cops on the beat. We put 100,000--and I see my colleague, the senior Senator from California, and I know about the great work that committee did on the COPS Program. But, oh, no, the Bush budget request cuts the COPS program by 87 percent and no new hires.

So now we see why the Republicans want to talk about gay marriage. They cannot point to anything they have done in the past to make us safer.

Firefighters, the Bush budget cuts firefighter assistance by one- third and provides no funding for the SAFER Act to hire 75,000 new firefighters.

We all remember the heroes after 9/11 and how everyone, Republican and Democrat, rallied around our firefighters. The cynicism around this place is unbelievable.

First responders, the bill to provide FEMA assistance to local first responders was approved by the EPW Committee in July of 2003. There has been no action by the full Senate.

So I have shown--and I have not even gone into them in great detail-- what we ought to be doing if our focus is defending our homeland.

It seems we do not have any problem focusing our resources abroad, trying to bring democracy to others while this administration seems completely at a loss on how to protect us at home. It is extraordinary to me. To come out to a microphone and say to the American people, look at these threats, here are Tom Ridge's own words:

Credible reporting now indicates that al-Qaida is moving

forward with its plans to carry out a large-scale attack in

the United States in an effort to disrupt our Democratic

process.

We then hear proposals discussed on how to delay the elections. This is pretty clear. But any leader who gives you this, and then doesn't step to the microphone and say: And, American people, we know how to protect you; we know how to make our ports safer; we know how to make our railroads safer; we know how to protect you against a guerrilla attack against a nuclear powerplant--oh, no, they give out iodine pills. That is what they do in this administration. They send iodine pills to people who live within 100 miles of a plant so they can be ``protected'' from cancer. It is extraordinary to me.

The other thing they do is they hold press conferences on the war in Iraq. Then they say it is going to get worse before it gets better. I don't understand that kind of leadership. Maybe I am old fashioned, but I think leadership is about seeing a problem and fixing it to the best of your ability--laying out the plans on how you are going to fix it. If you do not do that, you fail the test of leadership.

We need to be stronger at home. We need to be respected abroad. Senator Kerry and Senator Edwards are taking that message across this country. What I am trying to say today is that message is real.

I am saying there are many things we can do. I have just laid out 10 things we should be doing now instead of worrying about two people of the same gender moving down the street who happen to care about each other. But all we hear about is the fear part, and no plan. Remember how we had no plan for Iraq, except the military plan which was brilliantly executed, but then there was nothing after it? We have no plan to protect our homeland.

It is time to stop the fear mongering like this, unless you are going to say what we are doing to make us safer and carry it out. We have to start protecting our people, our homeland, and our democracy at home. But, again, what does the administration want to do? A constitutional amendment to prohibit gay marriage. A constitutional amendment that will deny--and make no mistake about it--millions of Americans equal rights because even if it doesn't say so explicitly, it will mean that those in domestic partnerships or in civil unions--which I strongly support--will not get equal rights or equal responsibilities.

Let's be clear. The authors of this amendment say it has nothing to do with domestic partnerships or civil unions; those are fine.

No. I will have later in my statement the lawyers who tell us that, in fact, it will be impossible for domestic partners or civil unions to receive anywhere near the same rights or responsibilities as married couples. This constitutional amendment, if it passes, would guarantee legal challenges to civil unions and domestic partnerships, as I said. That is David Reeves, a partner and legal expert at a well-respected law firm here in Washington.

How about the American Bar Association? They say:

The language of the constitutional amendment is so vague

that the amendment could be interpreted to ban civil unions

and domestic partnerships and the benefits that come with

them.

So be clear what you are doing. Even if you oppose marriage between people of the same gender, if you support civil unions or domestic partnerships, you are condemning them because they will not be able to have the same benefits. This constitutional amendment is divisive to this country. It even divided Lynne Cheney from Dick Cheney. Let's

just look at what Dick Cheney said before he changed his mind in this election year. This is the statement that now his wife supports:

The fact of the matter is we live in a free society and

freedom means freedom for everybody. And I think that means

that people should feel free to enter into any kind of

relationship they want to enter into. It's really no-one

else's business in terms of trying to regulate or prohibit

behavior in that regard.

This is what he says:

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 was Dick Cheney in the year 2000. Now, because the President has decided that he needs to do this right now rather than keep us safe from al-Qaida and move forward and help us get our legislative packages through to protect the American people, that this is more important, then Vice President Cheney now supports the amendment. But his wife Lynne has taken a decidedly different view. I have, in fact, shown you that before. Her comments:

I thought the formula Dick Cheney used in 2000 was very

good. First of all, to be clear that people should be free to

enter into their relationships that they choose and secondly

to recognize what's historically been the situation, that

when it comes to conferring legal status on relationships,

that is a matter left to the States.

So when I say it is divisive to the country, it has divided Mrs. Cheney from Dick Cheney and that is just an example of how it divides people.

I will tell you the reason it does. First, it is unnecessary. The States are taking care of this. Second, we are enshrining discrimination into the Constitution, a document that is meant to expand rights. We have never, underline never, amended the Constitution to deny rights, to deny equality.

In his testimony before the Senate Judiciary Committee earlier this year, University of Chicago Law School professor, Cas Sunstein, noted that:

All of the amendments to the Constitution are either

expansions of individual rights or attempts to remedy

problems in the structure of government. The sole exception

being the 18th amendment that established prohibition and

that attempt to write social policy into the Constitution was

such a disaster that it was repealed less than 15 years

later.

The list of adopted constitutional amendments is short but impressive. There are the first 10 amendments, the Bill of Rights, that guarantees important liberties to the American people, from freedom of speech and the press, to the right to be secure in our homes, to the freedom of religion. It is the 13th, 14th, and 15th amendments that undid the terrible injustices of slavery, ensuring African Americans the right to vote and guaranteeing everyone equal protection under the law.

Then there is the 19th amendment that gave women the right to vote. We know what a struggle that was. The suffragettes worked mightily, long and hard.

The 24th amendment banned poll taxes to further ensure that minorities have the right to vote.

The 26th amendment gave 18-year-olds the right to vote. I remember that debate was, if you are old enough to die for your country, you should be old enough to vote in your country.

It is quite an impressive list. It is a short list. It obviously sought to expand freedom and equality, and it did so.

The other day I happened to see my grandchild watching a show. They were singing a song--which I will not sing, so don't panic--which goes like this, in words:

One of these things is not like the other,

One of these things just doesn't belong.

This proposal before us today doesn't belong in the Constitution of the United States of America. That is why so many organizations, 127, have come out against this amendment. Let's take a look at them. It is a huge list. Many of these groups have absolutely no interest in the debate over same-sex marriage, but they share one common goal: Preventing discrimination from being written into our Constitution. Let me mention a few of these:

The Japanese-American Citizen League says:

The Japanese-American community is keenly aware of what it

means to be the target the Government sanctions and

implemented discrimination and mistrust. We believe

discrimination in any form is un-American.

The National Council of La Raza, the National Black Justice Coalition, the Mexican-American Legal Defense and Educational Fund, the Leadership Conference on Civil Rights, the Labor Council for Latin American Advancement, the American Jewish Committee, the NAACP, the National Asian-Pacific American Women's Forum, the National Hispanic Leadership Agenda say that this will be the first time in history that an amendment to our Constitution ``would restrict the rights of a whole class of people in conflict with its guiding principle of equal protection.''

These Americans who are in these groups--and by the way, there are a lot of religious organizations in this group: The Religious Action Center, you have a number of religions--the Interfaith Alliance, University Fellowship of Metropolitan Community Churches, Presbyterian Church Washington Office--a lot of these folks, not only do they not want to see discrimination written into the Constitution, but they believe the Constitution is a gift to us. I agree with that--a gift we inherited from giants among men who wrote it 217 years ago. We know no document is perfect, but when we amend the Constitution, it would be to expand rights, not to take away rights from decent, loyal Americans. This great Constitution of ours should never be used to make a group of Americans permanent second-class citizens.

This Constitutional amendment is so flawed it couldn't pass the Judiciary Committee. The leadership has to bypass the committee in order to get this bill before the full Senate. Sometimes that happens. We have seen it happen with various bills that come to the Senate floor. This isn't just a bill; this is an amendment to the Constitution of the United States. It needs to get 67 votes in the Senate. We don't even know if a majority of the Senate is in favor of it; yet here it is. Instead of doing what they would do to protect our people, this is what we are doing.

This amendment would make it impossible, if it passed, for States to say that two people who love each other, care for each other, and are willing to die for each other, have no inheritance rights, equal hospitalization rights, or equal benefits under the law. That is an outrage.

Don't let anyone tell you: I am for this amendment because it basically says marriage is between a man and woman, but I support civil unions and domestic partnerships. You can't do it. The lawyers tell us that once this is enshrined in the Constitution, the States will not be able to confer equal benefits on civil unions or domestic partnerships. Marriage is not a Federal issue; it is a matter of State law. For some it is a religious issue. Some religions recognize same-sex marriages and some do not. Again, many religions oppose this amendment, including the Alliance of Baptists, Episcopal Church, the 216th General Assembly Presbyterian Church.

When I got married, it was a religious service and I had my civil recognition, so I had both religion and civil present. Guess what. The Federal Government wasn't involved. That was OK. That is the way it has been.

My State has a domestic partnership law. California's law I believe is a good start. It gives same-sex couples many of the same rights and responsibilities as married couples. It isn't perfect. I think we need to do more. But even this imperfect law means so much to some people in California. For this Congress to take that away from them by amending this Constitution is wrong and it is mean spirited. That is what experts tell us will happen. My State has made this decision. Other States are making their decisions. What is wrong with that?

The very same people who are always preaching States rights now feel they must move forward. I already gave you Vice President Cheney's statement about the fact that we live in a free society, freedom means freedom for everybody, and he didn't think there ought to be a Federal policy in this area. I believe those words of his from the year 2000 stand up. Frankly, the words he is uttering today are just bowing to the political pollsters. That is really a shame. The Constitution is too great a document for it to be used as a political football. The Constitution is too great a document to be used as an applause meter before a convention. Yet that is what we are seeing.

I don't know what message the people who are bringing this to you want to convey. Is it to send a message that certain Americans are inferior? I hope not. But that is a message that is being sent to a lot of people who are hurting right now.

I have heard my colleagues say the reason for this amendment is that the American family is in a fragile condition. One of my colleagues says marriage is under assault by gay marriage or gay relationships.

I want to tell you something straight from my heart. Not one married couple has ever come up to me and said that their marriage is under assault because two people of the same gender living down the street care about each other. If your marriage is under assault because of that, you have other issues that you should deal with.

If we were truly concerned about strengthening marriage and families in this country, I will tell you there are a lot of things we could do, just like we could do a lot of things to make us safer. There are a lot of things we can do.

We have not raised the minimum wage in 8 years. People are trying to hold their families together on a minimum wage. Two people working on a minimum wage are probably just at the poverty line. Why don't we raise our minimum wage and help our low-income families? We could pass a bill to make sure our families and our married couples have the same health insurance as we have. I think it is a great idea. Open it up. We could pass a bill like that. We could pass a bill to make sure all children have a high-quality education. We could fully fund the No Child Left Behind Act. That would take pressure off of our families. Instead of freezing the number of children in afterschool programs--and I have a lot in my heart about that because I wrote the afterschool law with Senator Ensign. We have frozen that program for 3 years. We have a million kids in it. That is another one. Open it up. Let these children in. Take the pressure off our families. Take the assault off our marriages. That would really help. Keeping our children safe until mom or dad comes home is something we could do.

Now we have some saying the amendment is needed to stop the activist judges. Not one Federal judge has ruled on the issue of same-sex marriage.

I have to say: Is this a new thing we now have on the other side? Suddenly they are upset about activist judges. I can understand if they are concerned about activist judges. Why did they vote for many of them for the most part? My colleagues voted to confirm James Leon Holmes. Regarding women's right to choose, where was the concern when he said the ``concern for rape victims is a red herring because conceptions from rape occur with the same frequency as snow in Miami.'' He is going to take that opinion that is so wrong and defies science and is so activist in nature so he can change the law.

Where was the concern about William Pryor, who our colleagues on the other side of the aisle voted for, who said the Federal Government should not be involved in the business of public education or the control of street crime? Imagine a Republican saying that when it was Dwight Eisenhower who wrote the very first public education bill.

All of a sudden, we have concern about activist judges when they are voting for activist judges every day.

This same William Pryor called the Voting Rights Act, which guarantees voting rights to all of us, an affront to federalism. They didn't have a problem with that.

What about Charles Pickering, who worked to reduce the sentence for a man convicted of burning a cross on the lawn of an interracial couple?

What about activist judges who stopped the State recount in the recent Presidential election and essentially decided that election when most legal scholars said, they won't do it, the Supreme Court will allow a recount to go forward.

On every count, this argument seems to me to be disingenuous and only before the Senate to hurt some people who are going to cast a tough vote, so use it in 30-second spots. Indeed, some of those 30-second spots have already begun.

Shame on us. This job is too important, this country is too great. The Senate means too much to too many people to use it like this. It is not right.

If this was really about activist judges, we would be debating this after a Federal judge has actually acted. By the way, the timing of that would be inconvenient for my colleagues on the other side because no Federal judge will act before the Democratic Convention.

What we see--and it is really sad, but it has to be said--is crass, cold-hearted politics. Distracting attention from the real issues facing our Nation, this constitutional amendment is being used as a weapon of mass distraction. Again, already it is being used in 30- second commercials.

I hope and I pray the people of this country will see this debate for what it is. Members are going to hear a string of speeches: We have to do this because marriage is under assault.

The next question is, If marriage is under assault, what are you doing to help make family life easier for our people, easier for our hard-working people at a time when women and men both have to work because it is so tough, at a time when actual wages have gone up 1 percent but the cost of health care almost 30 percent, the cost of gas up, the cost of college tuition up well over 20 percent, the worst job record in the last 3 years?

Since this administration took over, we have had the worse job creation record since Herbert Hoover. Fewer jobs are in existence today than when George Bush took over. Do Members want to take the strain off of our marriages, off of our families? Let's have an economic recovery. Let's stop the good jobs from going abroad by giving incentives to create jobs here. Let's raise the minimum wage. Let's assure the people of this country that they will be protected from the threat of shoulder-fired missiles.

When we go up to that secret room upstairs and we are told that al- Qaida is moving forward to disrupt our democratic process and to attack our country, what do we come down here to do? Nothing to take away that threat. Holding bills at the desk, including rail security, transit security, port security, chemical plant security, nuclear plant security--I could go on with the other issues we ought to be discussing. But, no, we do not have time to take care of that.

Now I hear we are going to go to the Australian free-trade agreement after this. I love the Australians and they are great friends of America. But I love the people I represent, too. And when I see threats like this, I cannot sleep at night, worried about it. I didn't come here to stand and debate constitutional amendments that do nothing to make life better for anyone in this country. But that is what they want to do. It is a very sad day.

We are all God's children. No two of us are alike. We have different color eyes. We have different color hair. We have different color skin. We are different genders, different religions, different backgrounds, different views. I come from a State of 35 million people, the most unbelievably diverse State in the Nation. Yes, different sexual orientations is part of that mix. We are all different. Yet we are all God's children. We are all united behind this country and the common cause of freedom, justice, fairness, and equality. That is what unites us.

In this Chamber, we have a job to do. That is to advance the cause of freedom and justice and equality, and to advance the status of our people economically. Doing this does not help any of it.

A constitutional amendment before the Senate is an attempt to use our diversity to divide us instead of to unite us. Ironically, it is being brought by the President and his friends in the Senate who said he would be the great uniter, a healer; that he would change the tone in Washington.

The tone has changed. It is worse than it has ever been in all my years here, and this is the end of my second term in the Senate. I was in the House for 10 years. Before that I was in local government. I have never seen a worse tone.

This constitutional amendment is an attempt to appeal to our prejudice instead of to our compassion, to our hatreds instead of to our hopes, to our fears instead of our dreams. The constitutional amendment is an appeal to

what is the worst in us instead of what is best in us. We are better than that, or we should be better than that.

In his first inaugural address, Republican President Abraham Lincoln appealed to the better angels of our nature. This amendment flies in the face of those words.

Regardless of what anyone thinks about gay marriage, regardless of whether Members are for domestic partnerships or civil unions--which, again, I strongly support--regardless of whether Members support or oppose the laws in their State, this constitutional amendment should be defeated, and the motion to proceed, if it is a vote on that, I hope that fails, as well. The signal will be, when we defeat this motion to proceed, the message we are sending is we want to get to the business of the American people that will make marriages better and stronger, that will protect our people from threat of terrorist attack, not to sit here and talk about a constitutional amendment which the author knows hasn't got one slim chance of passing. He is taking up valuable time on an issue that does nothing at all to help our people.

I urge my colleagues to do the right thing. I urge my colleagues to put the Constitution above any political gain. I urge my colleagues to put the Constitution above their political well-being.

Here is what I have known in the many years I have run for office. When you take a stand out of deep conviction, people know. They may not even agree, but they ask, Do I want someone who is willing to take a hard stand and someone I can trust to do that when the chips are down? They want that. They will see that is what a true patriot is, not someone who reads the polls and says the polls show this or that. The point in the Senate sometimes is to lead. I wish it would be that way every day, but especially it should be that way when there is an amendment to the Constitution. I hope once we dispose of this and vote down the motion to proceed, and they do not get enough votes on that, we can turn our attention to the awesome challenges and the difficult issues we face. Once we send that signal, America will see we did right by the Senate, we did right by our constituents, and we did right by this country that we love so much and we hold so dearly.

I yield the floor.

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, I ask unanimous consent that the order for the quorum call be rescinded.

I ask unanimous consent that I be permitted to speak for such time as I may consume.

Mr. President, I want to speak for a few minutes about the social impact of the marginalization of the American family and traditional marriage over the past years. First, I want to address specifically some of the questions that have been raised both here in this Chamber and in the media and by others who have asked two main questions that seem to be coming back time and time again. One is, why can't we leave this to the States? Secondly, there are those who ask, why now? Why do we need a Federal constitutional amendment now before the U.S. Supreme Court strikes down traditional marriage laws? And then I would like to address more of the social consequences of what we are seeing.

First, the idea of leaving this decision to the States, while an appealing concept in theory, as a practical matter is impossible. Indeed, as I and others on this floor have said so on many occasions in talking about this issue, it has been decisions out of the U.S. Supreme Court interpreting the Federal Constitution and creating a broad right of personal autonomy that have, even addressing the marriage context and relationships between people of the same sex as well as traditional couples and the institution of marriage, it is that broad rationale that has now been bootstrapped by the Massachusetts Supreme Court in the Goodrich case to create this right, this right that did not exist in 1780 when John Adams wrote the Massachusetts Constitution, but all of a sudden was discovered some 224 years later by the Massachusetts Supreme Court.

Of course, the Massachusetts Supreme Court was not the one who dreamed up this right. We have to give credit where credit is due. And that is to the decision of the U.S. Supreme Court in Griswold v. Connecticut, in the Roemer case out of Colorado, and then in the Lawrence v. Texas case last summer.

It would be nice if we could say, for those of us who do believe in the primary authority of the States in all matters except insofar as the Constitution mandates that it is a Federal Government responsibility, I would at first blush find it appealing to be able to leave such matters and others to the States. But we know as a practical matter that that is impossible; first, because of the likelihood that the current challenges to State marriage laws under the Federal Constitution may succeed under the framework, under the roadmap that has been laid out by the U.S. Supreme Court in Lawrence v. Texas. And those challenges currently exist in Utah, Florida, and Nebraska. So no matter what State laws exist, obviously the Federal Constitution, as interpreted by the U.S. Supreme Court, has supremacy. That is what the supremacy clause is all about.

So while it may be appealing to say that we would like to leave this matter up to the States, the very real and present risk is that a Federal court, interpreting the Federal Constitution, will strike down all State marriage laws that stand in the way of same-sex marriages under the rationale used by the U.S. Supreme Court in Lawrence, as embraced by the Massachusetts Supreme Court in interpreting their State constitution in the Goodridge case.

But there is also another practical consideration, and that is on May 17, when the Massachusetts Supreme Court called traditional marriage a ``stain that must be eradicated,'' terming it ``invidious discrimination'' and without rational basis, when they embraced this revolutionary and radical notion, redefining the traditional institution of marriage after these many years, they didn't just affect the rights of people within the confines of the State of Massachusetts.

What happened, of course, is that couples came to Massachusetts from other States and took advantage of the laws of Massachusetts--at least insofar as interpreted by the Massachusetts Supreme Court--and said they wanted to be married and then move back to the States where they live. Indeed, we know that happened. Same-sex couples have come to Massachusetts and married and returned to their States in 46 different States.

So to suggest that what happens in Massachusetts stays in Massachusetts is wrong, as a practical matter. But the problem is, of course, that now we know there are a handful--I think at last count perhaps 9 or 10--of challenges to State laws restricting marriage or protecting traditional marriage by those who were married in Massachusetts--same-sex couples--who then moved back to their home State and filed a lawsuit in their State courts seeking to force their State to recognize the validity of that same-sex marriage.

As I and others have talked about on numerous occasions, the fact is, this is part of a national litigation strategy by those who would seek to overturn traditional marriage between a man and a woman. And we are not playing offense on this issue; we are playing defense in trying to defend traditional marriage against this national litigation strategy.

So those are just two reasons it is putting your head in the sand to say that this is a matter that is just limited to one State. As a practical matter, we saw on television in San Francisco where one mayor and local officials, in violation of California law, invited people to come there and get married. Now, of course, that issue is balled up in litigation pending before the California Supreme Court. So this is not a local issue confined to the States, nor is it a matter that can be handled, practically or legally or otherwise, by individual States, no matter how hard they might try.

The other question that has been raised is, Why now? The U.S. Supreme Court has not ruled traditional marriage to be unconstitutional and required same-sex marriages a national constitutional matter--not yet. Although it is clear in the hearings that we had in the Senate Judiciary Committee that using the tools that the U.S. Supreme Court provided in these cases that I have already discussed, clearly there is a path mapped out, and the logical conclusion of the rationale used in those decisions is to strike down traditional marriage as we know it.

But the question is, Why now? Some said, well, this may happen--I was talking to one of my colleagues on the other side of the aisle at about noon. He said: Well, this may happen in 3, 4, or 5 years, but it is not an imminent threat right now. So why in the world would we seek to amend the Constitution at this time?

Well, I point, by way of practical example, to what is happening in Massachusetts today. The decision to embrace this radical redefinition of marriage on May 17 was not put to a vote of the people of Massachusetts; it was an edict from the supreme court of that State. But once we saw that the elected representatives of the people of Massachusetts decided to meet and discuss this issue, well, we have seen that they have chosen to reject the decision of the Massachusetts Supreme Court and to protect traditional marriage. The problem is, in Massachusetts, their law requires two successive sessions of the Massachusetts Legislature to meet and agree on the constitutional amendment before it can be passed by the people, effectively meaning that there is no constitutional amendment in that State possible until 2006.

In the meantime, what are the people to do? Well, the people of that State and their elected representatives are watching this progression of same-sex marriages because the Supreme Court of Massachusetts demanded it and ordered it. Even though it is going to ultimately be overruled by the people, in the meantime you are going to have a couple of years in which couples--same-sex couples--are going to seek to be married and be officially married

under the laws of Massachusetts, only to have it then prohibited in 2006 going forward.

Well, I would think that people who ask why now would see that as an example of why it is important to do it here and now--before the Federal courts in this country adopt the reasoning of that Massachusetts case.

We know the U.S. Constitution has been amended 27 times. We know it is reserved for special cases, and the burden on someone who would seek to amend the Constitution is very high--a two-thirds vote of the Congress and three-quarters of the States having to vote to ratify. And that is appropriately so. But it is, as we have discussed, the only way that we the people can have a vote and can have a voice on this important issue, especially once the Federal courts, under the guise of interpreting the Federal Constitution, were to hold otherwise.

We know just from the history of those 27 amendments that, on average, they have taken about 8 years. I could be wrong on that figure, and I will doublecheck that, but it has taken roughly 8 years to ratify an amendment to the Constitution, on average. So we know if, in fact, a Federal court today were to hold that traditional marriage violated the Constitution, then the American people were to decide, through their elected representatives, to pass a constitutional amendment, we may find ourselves in effectively the same box that the people of Massachusetts find themselves in now, where in that case you have effectively a 2-year period in which same-sex couples are getting married under the auspices of the decision of the Massachusetts Supreme Court, and to effectively not be able to undo this example of a very aggressive judicial activism. So the same situation would apply under the Federal Constitution because of the amount of time it usually takes to get a Federal constitutional amendment to pass.

So those are two questions that I wanted to address specifically. But I must also say, Mr. President, that I have been profoundly disappointed at the silence that has been basically the only response we have heard from our colleagues on the other side of the aisle. I truly believe that they would prefer that this issue would just go away and that it not draw too much attention because they know if the American people get energized on this issue, they will agree with those of us who believe that traditional marriage and families are worthy of protection by virtue of this constitutional amendment.

They are hoping that nobody pays very much attention, that it will sort of slide by, and that they will not feel the negative repercussions of their objection to this important amendment and the protection of traditional family and traditional marriage through this process.

I wish rather than just not saying very much at all or anything, they would come to the floor and actually debate the issue. If they think they have a strong case, if they think that reason and justice and logic are on their side, I say let's talk about it.

This is sometimes called the world's greatest deliberative body, but it is hard to have very much deliberation, it is hard to have very much debate if the opponents to this amendment simply boycott the debate and hope the issue passes without many people paying much attention, and they are able, as I said, to avoid the wrath of the people for failing to take what steps we find it within our means and ability to take to protect traditional marriage.

Last March, I chaired a hearing in the Senate Judiciary Subcommittee on the Constitution regarding the decision I mentioned a moment ago, the U.S. Supreme Court's decision in Lawrence v. Texas. The Goodridge decision had not actually been handed down last September when we first had that hearing. But in the interim, between that time and this, of course, in March and then May, we had the Goodridge decision handed down which has resulted in an explosion of litigation across America.

During those hearings, both in September and then later on--we actually had a total of three hearings in the Subcommittee on the Constitution--we had some thought-provoking testimony. But at the hearing in March, I was personally moved by the sentiments of Pastor Daniel de Leon of the Templo Calvario Church in California and the testimony of Rev. Richard Richardson of the African Methodist Episcopal Church in Boston whom we were honored to have in attendance.

Both testified they would rather be at home working with the members of their congregations rather than having to come to Washington to testify why it is important to defend traditional marriage. But it is because of the work they do, because they see the results in the decline of marriage and traditional families in their communities every day, that they believe traditional marriage is so important and worth defending.

Some say we are not likely to win this vote that, as I understand, could happen on Wednesday. Regardless of the outcome of this amendment at this time, I believe it is important we have a national discussion on the importance of marriage and a discussion that is based on facts.

We have heard a lot of people talk about the benefit of marriage for adults. We have heard some discussion about hospital visiting rights and inheritance rights, even though many of these issues could be solved simply by a matter of contract between the parties involved. We have learned that people who want to can actually enter into arrangements that will achieve the results they want short of marriage by signing a few simple documents.

We have even heard some discussion about government benefits, even though with these benefits come burdens, and the actual financial ramifications of these benefits are a matter for debate.

Yet I have heard little conversation about what I believe to be the most important issue that is related to what we are discussing, and that is the benefits of marriage for children. It is easy for some people to step back and say this issue does not affect them, but the facts, the social science research that we see from other countries demonstrates otherwise.

This research shows us that this issue affects everyone but particularly children. None of us can, if we are going to claim to be in good faith about this debate, ignore these facts and these examples, nor should we, I believe, be neutral or merely stand on the sidelines.

Scandinavia, as we have heard before, has treated same-sex households as marriage for more than a decade. This practice was instituted in Denmark in 1989, in Norway in 1993, and in Sweden in 1994. The direct reaction to these decisions was relatively small. Few people, it seems, were actually interested in the new arrangements, in the new rights they achieved to marry a person of the same sex, and to this day the number of participating households is rather low.

But the greatest effect was not upon those who sought this new institution but on the society at large. Sad to say, there has been an enormous rise of family dissolution and out-of-wedlock childbirth. Today, about 15 years after Denmark created this new institution, a majority of children in Scandinavia are born out of wedlock, including more than 50 percent in Norway and 55 percent of the children in Sweden, and in Denmark, a full 60 percent of first-born children have unmarried parents.

In Scandinavia, as a whole, traditional marriage is now an institution entirely separated from the idea of child rearing or childbearing, and it is an incidental union, no longer an important one, much less a unique one.

Scandinavia is not alone. In the Netherlands, during the mid-1990s, the rate of out-of-wedlock childbirth began to shoot up by an astonishingly high rate of 2 percentage points a year, a rate matched by no other country in Europe.

By 2003, the out-of-wedlock birthrate had nearly doubled to 31 percent of all Dutch births. It is no coincidence that these were the years when the social debate over legalizing same-sex marriage was the loudest in the Netherlands.

During Holland's drive for same-sex marriage, advocates in Parliament and elsewhere openly scorned the idea that marriage ought to be defined by its childbearing and child rearing character. Of course, there is always a risk that if you spend a decade telling people that marriage is not about family and it is not about children they might

just start believing you. But that is apparently what happened in the Netherlands. The Dutch people simply stopped getting married, even when they had children. When it is no big deal, marriage becomes just another choice on a menu of relationship options, and the children pay the price.

Respected British demographer Kathleen Kiernan drew on the Scandinavian case to form a four-stage model by which to gauge a country's movement toward Swedish levels of out-of-wedlock births.

She said in stage 1 the vast majority of the population produces children without marriage, such as in Italy. In the second stage, cohabitation is tolerated as a testing period before marriage, and it is generally a childless phase, such as we currently have in America. In stage 3, cohabitation becomes increasingly acceptable, and parenting is no longer automatically associated with marriage. While Norway was once at this stage, recent demographic and legal changes have pushed it into stage 4, along with Sweden and Denmark.

In the fourth stage, marriage and cohabitation become practically indistinguishable, with many children, even most children, born and raised outside of traditional marriage.

According to Kiernan, once a country has reached a stage, return to an earlier phase is very unlikely.

As you can see, Mr. President, the dissolution of marriage is passed on to children, to the next generation, and the devaluation of marriage as an important institution continues.

In America, the results could be even more significant than in Scandinavia or the Netherlands because, after all, we already have a significant problem of out-of-wedlock childbirth in our own country. When the example of traditional marriage is removed, when cohabitation and marriage are equally respected and when childbearing is no longer something that ought to ideally come in the context of traditional marriage, I fear the problem of single-parent households will only worsen.

We have a wealth of social science research from hundreds of sources over the course of decades which consistently reflects both the positive ramifications for children of a stable, traditional marriage and the negative effects of family breakup, including divorce and out- of-wedlock childbirth. Marriage provides the basis for the family, which remains the strongest and most important social unit.

As we have heard, countless statistics and research attest to the fact that when marriage becomes less important because it is expanded beyond its traditional definition to include other arrangements, that untoward consequences such as greater out-of-wedlock childbirths occur. People simply regard marriage as less significant and certainly, by definition, no longer unique.

Let me be clear. There are literally thousands, tens of thousands, probably hundreds of thousands, of single parents in this country who do a heroic job of raising their children in single-parent households. Nothing I have suggested is meant at all to disparage the great work they do. It is only to point out what social science and common experience would tell us is true, and that is, if possible, the optimal condition to raise any child, in terms of the family in which they are raised, is a family that is intact and where they have a loving father and a loving mother.

We recognize there are circumstances where that is not possible for a variety of circumstances for every child, but that should not deter us from seeking the optimal situation for every child if it is, in fact, possible.

Here in America we made the decision we ought to particularly encourage and support those who marry and have children. This, of course, is not a partisan issue. That is one reason why I am so disappointed by the silence with which we are met on the other side of the aisle, talking about this important issue. In fact, it was one of the most distinguished Democratic Members of this body, Senator Daniel Patrick Moynihan, who argued more than a decade ago that we must stop ``the breakup of family inevitably'' as best we can. He said:

The principle social objective of American National

Government at every level . . . should be to see that

children are born into intact families and that they remain

so.

We don't raise our neighbors' children as our own, but we do help all the children in every community every time we affirm and reinforce the importance of traditional marriage, through our speech, by our actions, in our culture, and by our laws. It is a position reinforced through our laws and our practices, and I believe it is right. Government should not be neutral, nor should it pretend to be neutral when it comes to children and families.

Most Americans take for granted that traditional definitions of family and marriage as we know them will always exist but that, as we have seen, is a mistake. We see in Scandinavia and the Netherlands why that assumption would be a mistake. Now we see that same development occurring in one of our States and being spread through litigation throughout the country.

The American people are not persuaded that this radical redefinition of marriage is needed or that it is a good thing. When given the opportunity to express themselves, they have always supported traditional marriage clearly and forthrightly.

I, for one, believe that a national discussion of this issue is a good thing. Those of us on the side of traditional marriage must not flinch and we should not back down and we should not allow people to paint our motivations as hateful or hurtful because, indeed, they are not.

We recognize two simple propositions simultaneously in this country. One is the essential dignity and worth of every human being. But, second and at the same time, we recognize that we see enormous benefits to our children, to society, and to all of us by preserving the traditional institution of marriage. We are merely seeking to defend the fundamental bedrock of our society, the wellspring of families and the welfare of children. That is what we are for. We, who have the responsibility of serving in elective office, have the duty to act to protect marriage as a social good, not to ignore this issue until it is too late.

Some believe traditional marriage itself is about discrimination, that all traditional marriage laws are unconstitutional and therefore must be abolished by the courts. They align themselves with four justices in Massachusetts who contend the traditional institution of marriage is ``rooted in persistent prejudices'' and ``invidious discrimination'' and not in the best interests of children.

These activists, out of the mainstream as they are, accuse others of writing discrimination into the Constitution. Yet they are the ones who are willing to write the American people out of our constitutional democracy.

Now that the threat to traditional marriage is a Federal threat, a Federal constitutional amendment is the only way to preserve traditional marriage laws nationwide before it is too late. We need stable marriages and stable families. The institution of marriage is just too important to leave to lawyers and lawsuits and to chance.

Unless and until the American people are persuaded otherwise, we have a duty as their representatives to defend the laws they have passed, indeed the laws that we have passed, such as the Defense of Marriage Act in 1996, and not let extremists in the courts or outside them reshape society according to their own whim. We can be confident in the fact that a constitutional amendment is the most representative process we have in American law.

There is no possible response to this judicial activism, to this rewriting of the Constitution by judicial fiat, but an amendment. Give the States a voice. Give the people a voice. They deserve no less on such an important issue.

I suggest the burden of proof is on those who seek to experiment with traditional marriage, an institution that has sustained society for countless generations. The experimenters must present their case to us, that the radical new social unit they propose is good for the community, is good for families, and most of all good for children. Thus far, the laboratory where this experiment has already been run, in Scandinavia and the Netherlands, has given us nothing but disastrous results.

I yield the floor.

Mr. President, I ask unanimous consent that Senator Santorum be recognized for so much time as he may consume.

Mr. President, I yield the floor and suggest the absence of a quorum.

Mr. President, I know the majority leader is coming to the Senate floor, and I know the Democratic leader has kindly waited until he has arrived to make his unanimous consent request.

In the couple of minutes that remain until he gets here, I would like to offer my own response, not on behalf of anybody else other than this one Senator from Texas. I, frankly, don't think it is a waste of time to talk about the institution of the American family, traditional marriage, which is my strong belief. I don't think the American people feel it is a waste of time. We have a lot of important issues to discuss. I certainly think this deserves to be at the top of the list, although there are certainly many important issues.

As soon as I get through, I will be glad to.

One of the concerns I personally have about the unanimous consent request that will be proffered is it would not allow for any amendments to be made. I just point out to the distinguished Democratic leader my own concern that, as he pointed out, this has not actually been voted out by the Judiciary Committee, but it has been through a number of committee hearings, three of which I have chaired, and I believe there have been at least two others chaired on this important issue by the Judiciary Committee and others.

I am concerned with the offer that we have an up-or-down vote on this matter on Wednesday, without the opportunity for anyone to offer amendments. That is a concern I have shared with the majority leader and others. Indeed, it was just last week on the class action bill, where the majority leader offered that piece of legislation but filled the amendment tree so there was no opportunity for our friends on the other side to offer an amendment, they objected mightily because no amendments were allowed. So I remind my colleagues that if it is a concern that you cannot offer amendments on a piece of ordinary legislation, it is doubly a matter of concern--at least it is to me, and I speak for myself--where there would be no opportunity to offer amendments on this legislation.

Finally, it is my understanding that a cloture motion is being circulated. So we are not talking about weeks and months of debate on this issue; I think we are talking about a matter of days. I believe we ought to have a full and fair debate and let everybody have a chance to be heard.

So far, we have not heard very much from our colleagues on the other side of the aisle on this issue. There have been some who, like the Democratic leader, have said we ought to leave it to the States. I and others have tried to articulate why that is not possible. I wish it was possible.

I will be glad to yield for a question.

I think 2 days of good, strong debate would not be a bad idea, but I would not want to, at least up front, totally preclude the possibility of offering any amendments, and that may, indeed, necessitate longer debate, depending on what happens during the course of the give-and-take on the floor.

I was not aware, Mr. President, that our colleagues on the other side of the aisle had any interest in offering any amendments or really debating this subject very much, for that matter, given their absence on the floor today. I was not aware of any amendments that might be offered by our colleagues on the other side of the aisle. I think that is not a bad idea myself.

Mr. President, I appreciate the questions and the opportunity the Democratic whip has given to respond, but that has not changed my view that it is not a good idea for this body, on something as serious as a constitutional amendment, to have one on the Senate floor, but then enter into a unanimous consent agreement that no amendments be considered. I agree time is precious, especially with the short time that remains for legislative action, but I do think on something as fundamental as the American family and preservation of traditional marriage that a little bit of time--certainly a couple of days, maybe even a week I would be willing to do if it was necessary to actually get some action to address this important issue. I would personally want to take longer. Here I defer to the discussions between the distinguished Democratic leader and the majority leader.

I yield the floor.