Uniting American Families Act

Mr. President, one of the first things a Member of the Senate should learn is humility, humility when it comes to some of the documents that guide our Nation. We certainly understand the Constitution we are sworn to uphold and defend is a treasured document which has guided us for over two centuries. I, for one, come to the subject of amending this Constitution with real humility. I think it is bold of some of my colleagues to believe that their handiwork, their words, could stand the test of time, could be measured against the work product of Thomas Jefferson and the greats in American history.

This matter before us today is an attempt by some of my colleagues to amend the Constitution, to change the document which has guided America for so long. I have seen a lot of these amendments come and go as a member of the Judiciary Committee. Some of them, frankly, couldn't even make it

through the committee, let alone on the Senate floor or be sent to legislatures for approval.

But still Members come forward with a variety of ideas. Today, we consider the so-called Marriage Protection Amendment. My friend, my colleague from Colorado, Senator Allard, the lead sponsor of it, says this amendment will not infringe on the rights of States to determine the status of different relationships. Yet let me read the language of his amendment:

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.

So if my State of Illinois decides to establish a domestic partnership law and say that two people of the same gender can live together and share health insurance and can be in a relationship where there would be a guarantee that they would have access to visit one another in times of hospitalization and sickness, where property rights could be established, is that a legal incident of married life? Most people would say yes. Clearly, this language says it would be prohibited. So what we have here goes far beyond the concept of marriage. We have to take care not to put language in this Constitution that will come back to haunt us.

I step back, too, and look at this debate and wonder, why are we here on the floor of the Senate doing this? Why are we debating this issue above all others? Why are we taking virtually a week of Senate business time to debate the issue of gay marriage? I think it goes back to a statement made by President Bush a couple weeks ago on the issue of immigration. This is what he said:

We cannot build a unified country by inciting people to

anger, or playing on anyone's fears, or exploiting [an] issue

. . . for political gain.

He was referring to the issue of immigration, but the standard is a good one. We have a responsibility to unite America and not divide it.

Mr. President, I wish you could hear the telephone calls to my office. The people calling in support of this amendment--many of them-- are very courteous and ask me to vote for the amendment. But, sadly, so many of them call spewing their hatred and bigotry of people of different sexual orientation. You think to yourself, is this good for America? Is it good for us to have this sort of angry display brought out by our actions on the floor of the Senate at a time when we know this constitutional amendment will not be enacted by the Senate? Nobody believes it will receive the 67 votes that are necessary for final passage, and few believe it will even come close to the 60 votes necessary on a cloture motion. Yet we come today, as we have times before, to bring up this issue.

This debate is not about the preservation of marriage. This debate is about the preservation of a majority. The Republican majority believes that if they can bring these issues which fire up their political base to the floor, they will have better luck in the November election. So at the risk of dividing America, at the risk of putting language in the Constitution that could not stand the test of time, they will take the time of the Senate and engage us in this debate. That is unfortunate when you think of so many other things we should be dealing with.

Would this not have been a great week to deal with energy policy and reducing our dependence on foreign oil, to make America less dependent upon the Middle East and the foreign powers that push us around because we need their oil to propel our economy? Would this not have been a perfect week to debate affordable and accessible health care for every single American? Would this not have been a perfect week for us to decide what in the 21st century we need to do to make sure our schools prepare our citizens to continue to lead in this world? Would this not have been an important week for us to come together and have a meaningful debate on the war in Iraq which has claimed 2,476 of our best and bravest young men and women?

No. The Republican majority said no. They said this is a perfect week for us to come together and discuss a flawed amendment to the Constitution, for us to come together on an issue that, sadly, divides us rather than unites us as Americans, and to take that time off the Senate calendar. I think it is very clear that this is not a voter priority. It is not an American priority. When the American people were asked in a Gallup Poll in April, ``What do you think is the most important problem facing this country today,'' this issue came in at No. 33. But for Senator Frist and the Republican majority, it is No. 1 this week. I think most people realize there is political motivation here and that is what it is all about.

We should also consider the reality that this is clearly a State issue. States have always established the standards for marriage. That has been the tradition in American law, a tradition which would be upset and voided by this amendment. Each State may have slightly different standards.

A few years ago, under a Democratic President, Congress passed the Defense of Marriage Act. The Defense of Marriage Act said that no State would be compelled to recognize the standards of another State when it came to same-sex marriage. Now, that means in the State of Massachusetts, where gay marriage is allowed, they can make that decision. The people in that State can validate that decision and courts can approve that decision, but they cannot impose that decision on Kansas, Colorado, Illinois, or Alabama.

The Defense of Marriage Act has never been successfully challenged, never been overturned, and it is the law of the land. But it is not good enough for those who propose this amendment. They want more. I believe that is unfortunate. It is unfortunate when we consider that we are taking the precious time of the Senate on an issue which we should not be considering at this moment. The Republican leadership ought to listen to First Lady Laura Bush. She was asked about this amendment last month on ``FOX News Sunday''--the fair and balanced FOX, remember that? This is what she said:

I don't think it should be used as a campaign tool,

obviously.

That sentiment was echoed last month by the daughter of Vice President Cheney. This is what she said:

I certainly don't know what conversations have gone on

between Karl [Rove] and anybody up on the Hill, but . . .

this amendment . . . is writing discrimination into the

Constitution and . . . it is fundamentally wrong.

Now consider the wise words of another former Senator, a loyal Republican, John Danforth of Missouri--a conservative man, but he opposes this amendment. He said this in a recent speech:

Some historian should really look at all of the proposals

that have been put forth throughout the history of our

country for possible constitutional amendments. Maybe at some

point in time there was one that was sillier than this one,

but I don't know of one.

In fact, over 11,000 constitutional amendments have been proposed by Members of Congress throughout our history. Only 17 of them actually passed into the Bill of Rights. Why? Because amending our Constitution should take place under only the most extraordinary circumstances. We should amend it only when it is essential to protect the rights and liberties of the American people.

I am joined in this belief not only by Democrats but by Senator Danforth, the Vice President's daughter, the First Lady, and by many true conservatives.

Listen to what Steve Chapman, a libertarian writer from the Chicago Tribune, wrote:

If there is anything American conservatives should revere,

it's the U.S. Constitution, a timeless work of political

genius. Having provided the foundation for one of the freest

societies and most durable democracies on Earth, it shouldn't

be altered lightly or often.

As United States Senators, we take an oath. We solemnly swear to support and defend this Constitution. I believe part of that oath requires us to take care when it comes to changing the Constitution.

I have listened to some of the debate on the floor. The Presiding Officer from Kansas spoke yesterday about marriage in America. I think it is a legitimate concern. America's strength is its families. The family of Americans has been the model--the goal, really--and the leadership of our Nation. But to argue for this amendment, suggesting that the increase in births to unmarried women is somehow

linked to gay marriage--I don't understand that connection in any way whatsoever. To suggest that lower income level people are less likely to marry and that has something to do with gay marriage--I don't understand that connection, either.

If we are truly going to strengthen the American family, would we not want to increase the minimum wage in America, which hasn't been increased by this Republican Congress in 9 years? Would we not want to provide basic health insurance to families so they can have peace of mind when their children get sick? Would that not strengthen families? Would we not want to make sure we have good-paying jobs in America that create opportunities so people can look ahead with optimism? Would that not strengthen families and our country? Instead, we have the gay marriage amendment.

In the State of Kansas, the former Republican State chairman has decided to become a Democrat. He said he was tired of the culture wars the Republican Party tended to always want to fight. We saw it here in the Congress last year when the House Republicans were in trouble and they brought up the tragic case of Terri Schiavo--an invasion of the Federal Government into the most personal, private decision a family could face. Now, again, facing political difficulty, they bring up this Federal marriage amendment. It will not pass today. We must set it behind us and move forward on the important agenda the American people sent us to Washington to work on. Let us do it in the spirit that President Bush reminded us of a few weeks ago--building a unified country, not inciting people to anger or playing on anyone's fears or exploiting an issue for political gain.

I hope my colleagues will join me in opposing amending the Constitution, despite the best efforts of those who bring this issue before us today in S.J. Res. 1. This does not merit inclusion in the most treasured and important document that guides America and its democracy.

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

Mr. President, the ranking member of the Judiciary Committee, Senator Leahy, is on his way to the Chamber. I know the time is running. I will speak until he arrives. I wanted to make a point or two based on arguments used in this debate.

Mr. President, 45 of 50 States passed either a constitutional amendment or a law defining marriage as between a man and a woman--45 of 50 States. There is only one State in America where same-sex marriage is legal, and that is Massachusetts. No other State, county, city, or anyplace in America permits same-sex marriage.

Incidentally, it is ironic that the State with the lowest divorce rate in America happens to also be Massachusetts. There is simply no crisis or controversy before us today that requires amending the Constitution.

Another reason I oppose this amendment, as I indicated earlier, is that the language is vague and overbroad. The reference to ``legal incidents'' of marriage is troubling. The Senate Judiciary Committee held hearings on the meaning of the term ``legal incidents'' of marriage. I attended those hearings and questioned witnesses. There was

simply no consensus on how the courts might interpret that.

Some of the witnesses predicted courts would read it to ban civil unions. Some even think this amendment would be read by the courts to prohibit other efforts to equalize benefits, such as domestic partner benefits, adoption rights, and even hospital visitation rights.

Is that what we want to do in the Senate, ban those who have a loving relationship from visiting their partners who are sick in a hospital? Passage of the Federal marriage amendment may well have that effect. We don't know.

It is also a bad idea because it exemplifies the excessive overreaching by Congress into the personal lives and privacy of American citizens. How many times will the Republican majority march us into this question as to whether we can protect and defend the privacy of our rights as individuals and families?

As I mentioned earlier, it is a sad reminder of the debate over the tragedy of Terri Schiavo, a woman who was sustained with medical care for some 15 years, and when the decision was made not to provide additional care for her through the courts, there was an effort made by the Republican leadership in Congress to bring the Federal courts into the picture to overturn the family's personal decision and the decision of the Florida courts. Congress tried to impose its own morality and its own will over the most personal, private, and painful decision any family can face. This amendment would impose the morality of some on the lives of all.

A few months ago, this Nation lost one of its most famous and foremost civil rights leaders, Coretta Scott King. Upon Mrs. King's death, Majority Leader Frist submitted a Senate resolution to honor her life and commitment to social justice, and it was adopted unanimously.

I wonder if the majority leader is aware of what Mrs. King had to say about the constitutional amendment that Senator Frist has brought to the floor this week. Here is what she said in 2004:

A constitutional amendment banning same-sex marriages is a

form of gay-bashing and it will do nothing at all to protect

traditional marriages.

I hope the Republican leadership, I hope every Senator, takes to heart the words of the civil rights hero they were so quick to honor a few months ago.

It has been my experience in life that some members of my family, many of my acquaintances and friends are people of different sexual orientation. Most of them want to be left alone. They want the privacy of their own lives. They want to make their own decisions. And here we have an effort to impose in our Constitution a standard which reaches into the legal incidents of marriage, a standard which could deny to them some of the most basic things which we treasure, such as access to health insurance, access to visitation in hospitals, and the common decency of the social relationship which is all they are asking.

Under those circumstances, I think it is important for us to reflect on the fact that when it comes to amending this Constitution, we should be ever so careful because a change in a few words in the Constitution can have a dramatic long-term negative impact on this great Nation.

I see that my colleague, Senator Leahy, has arrived. I yield the floor to him.

I announce that the Senator from Connecticut (Mr. Dodd) and the Senator from West Virginia (Mr. Rockefeller) are necessarily absent.

Mr. President, I thank my distinguished colleague from Illinois.

This morning we will be voting on whether to proceed to a proposed amendment to the Constitution. I strongly oppose this divisive exercise.

At a time when the Senate should be addressing Americans' top priorities, including ways to make America safer, the war in Iraq, rising gas prices, health care and health insurance costs, stem cell research, the erosion of Americans' privacy and the reauthorization of the Voting Rights Act, the President's political strategists and the Republican Senate leadership, instead, try to divide and distract from fixing real problems by pressing forward with this controversial proposed constitutional amendment.

Rather than seek to divide and diminish, the Senate could be working against discrimination. I was honored to sponsor the Mychal Judge Police and Fire Chaplains Public Safety Officers' Benefit Act of 2002 to ensure that the survivors of 9/11 were treated fairly regardless of sexual orientation. If we really want to do something that the Senate can do, we should join together in a bipartisan way to pass the hate crimes bill that would help stamp out and punish violent crimes against those attacked because of the color of their skin or their nationality or sexual orientation. If we really want to do something worthy of the Senate we should debate and pass legislation to end discrimination in employment based on sexual orientation. If we want to recognize the dignity and worth of others we should consider S. 1278, the Uniting American Families Act, a bill I introduced to bring fairness to our immigration laws.

The Constitution is too important to be used for partisan political purposes. It is not a billboard on which to hang political posters or slogans seeking to stir public passions for political ends.

I want all Americans to appreciate that if this proposed amendment became part of our Constitution, it would represent a dramatic departure from this Nation's history of expanding freedom and individual rights. We have only amended the Constitution seventeen times since the Bill of Rights was ratified in 1791. None of these amendments has served to limit the rights of an entire class of Americans. Furthermore, none of these amendments has dictated to the States how they should interpret their own constitutions. This proposal not only enshrines discrimination in the Constitution, it usurps what has always been the function of the States with regard to defining marriage. When each of us became Senators we swore an oath ``to support and defend the Constitution of the United States.'' I will honor that oath by opposing this effort to inject discrimination into the Constitution.

This attempt will once again fail to garner the necessary votes to proceed. But that should not excuse the Republican leadership's turning away from the legislative agenda of the Senate for this election year adventure. I hope that the American people will object to this misuse of the Senate's time and authority the way they did when the Senate injected itself into the Schiavo matter not so long ago. The American people want their leaders to unite this country and to solve real problems that they face every day. This constitutional amendment is a divisive political effort to shore up sagging poll numbers. I believe the American people will not be fooled and will see through this exercise.

I look forward to moving on to the Nation's real priorities. The Senate should return to a place where we consider solutions to the problems that plague hardworking Americans, from soaring gas prices and high health care costs to corporate and Government corruption, from national security to effective fiscal and trade policies. We might consider taking action to preserve and improve rather than pollute the environment. Someday this Chamber might even debate the ongoing pandemic of AIDS or protect against the impending pandemic from bird flu. We might join in effective action seeking to halt the genocide in Darfur or oversight of the allegations of Government violations of the rights of Americans. I look forward to that time.

Mr. President, I mentioned Monday at the start of this debate that over the last several years I have repeatedly written to the President about this issue and have yet to receive a response. I have already included in the Record a copy of my most recent letter to him on this constitutional amendment in which I asked what precise language it is that he supports and what it means.

I noted that President Bush said in 2004 that ``States ought to be able to have the right to pass laws that enable people to be able to have rights like others,'' but no such thing is guaranteed by the proposed amendment that we are considering.

The appearance of the President this week, where he reread what appeared to be a longer draft of his Saturday radio address to a handpicked audience of those seeking to amend the Constitution to write discrimination into it and create a constitutional intrusion

into family law issues that have always been left to the States, was troubling in so many ways. At least that event was moved out of the White House Rose Garden, for which I am grateful. Sadly, the audience, which the White House described as a diverse cross section of community leaders, scholars, family organizations and religious leaders, was selected apparently to exclude gays and lesbians. That is hardly the way to engender fair and open debate or to show tolerance or to honor the dignity of all Americans.

As this debate opened, I quoted the President's thoughtful words from the immigration debate. He said: ``We cannot build a unified country by inciting people to anger, or playing on anyone's fears, or exploiting the issue of immigration for political gain. We must always remember that real lives will be affected by our debates and decisions, and that every human being has dignity and value. . . .'' I wish that yesterday the President had honored that thought and merely substituted the issue of ``marriage'' for ``immigration''. The President is seeking to show leadership in the immigration debate and I have commended him for it. I cannot commend him for what he did yesterday.

Just before the last election, President Bush said that ``States ought to be able to have the right to pass laws that enable people to be able to have rights like others.'' He cannot square that position with his and his administration's recently announced support for a proposed constitutional amendment that prohibits States from conferring the ``legal incidents'' of marriage on same-sex couples. In January 2005, after he was reelected, President Bush himself recognized that this proposed constitutional amendment was not going to be adopted and that no good purpose was served by forcing more Senate debate on it. Yesterday, the President did not well serve this Nation or its diverse population. Our Nation would be better served if we refrained from divisiveness to score political and emotional points before an election.

Moreover, yesterday the President's activities demonstrated how the Republican leadership's misplaced priorities and politics have diverted the Senate from matters that concern and affect the American people. By way of contrast, the Democratic leader went to the Senate floor to urge that we proceed to conference on the recently passed immigration bill. Senate Republicans objected to a usual practice of taking of a House- passed bill and inserting the language passed by the Senate so that we can proceed to a House-Senate conference. Instead of spending time pandering to a segment of Republican's political base, the President could have worked with us to make progress on our bipartisan immigration initiative. Republicans and Democrats have said that we will need the President's help to make comprehensive immigration reform a reality. Yesterday the President was AWOL on the issue. He was not expending his efforts urging comprehensive immigration reform on the recalcitrant Republican House leadership or helping us in the Senate overcome threats of procedural objections to proceeding to conference.

Another consequence of the Republican leadership's misplaced priorities is that the Judiciary Committee has yet to complete hearings on reauthorization of the Voting Rights Act. This is bipartisan, bicameral legislation on which I had hoped hearings would be complete. The final hearing on the reauthorization of important minority language provisions was scheduled for tomorrow. It has been postponed, and the excuse is that the Senate debate on this proposed constitutional amendment takes precedence. So our efforts to enact meaningful, comprehensive immigration reform with strong border security and a path to earned citizenship and our efforts to reauthorize the protections of the Voting Rights Act have both been adversely affected as a consequence of the Republican leadership insisting on proceeding to this extended debate.

The demagoguery in the President's rally this week and the Statement of Administration Policy are sad to see. It is not the institution of marriage that is under attack but the Constitution and our system of federalism. They seek to justify their attack by demonizing judges. The comment the President added to his radio address was to ratchet up the rhetoric against judges by proclaiming that judges ``insist on imposing their arbitrary will on the people.'' This President just appointed Chief Justice Roberts to lead the U.S. Supreme Court and the judicial branch of the Federal Government. He has appointed approximately 250 Federal judges, including 2 Supreme Court Justices and 45 judges on the courts of appeals. The majority of Federal judges have been appointed by Republican Presidents. Any judicial decision that was a dramatic departure from the status quo on this issue would certainly be appealed to the U.S. Supreme Court where seven out of nine justices have been appointed by Republican Presidents. Does anyone really believe that Chief Justice Roberts is going to preside over a U.S. Supreme Court that imposes same-sex marriage as an act of ``arbitrary will''?

I agree with the Senior Senator from Virginia who recently voiced his ``grave concerns'' about the proposed amendment because it fails to ``speak with the clarity to which the American People are entitled.'' I too have significant concerns about the vague prohibition of ``the legal incidents'' of marriage for same-sex couples. That ambiguity raises serious questions whether State laws allowing civil unions and civil partnerships would be overridden and rendered ``unconstitutional.'' Numerous witnesses at our committee hearings testified that the proposed language would or could invalidate civil unions or prevent States from enacting laws that closely mirrored the rights of marriage couples.

Although the President and some Senate supporters contend that this proposed amendment binds only judges and not State legislatures and that it prohibits only marriage but not civil unions or partnerships, that is not clear in the language of the proposed constitutional amendment. Ironically, it will be judges who have the last word in determining the meaning of words used in a constitutional amendment. So the very ``boogeymen'' that the proponents of this proposed constitutional amendment seek to create by demonizing judges will be those who will be forced to decide the effect of its intentionally ambiguous wording.

I trust the American people will see through these escapades. I trust they will abhor the attack on the Constitution as I do. I believe they have bigger hearts and compassion of the families of committed same-sex couples. I hope they will hold accountable those who are expending the Senate's time on this futile exercise by denying them partisan gain.

I have previously noted that the news accounts and editorials characterizing this effort as crassly political are too numerous to include in the Congressional Record. On this occasion, I ask unanimous consent to have printed in the Record a sampling from a variety of newspapers and outlets from around the country including editorials from the Arkansas Democrat-Gazette from May 24, 2006, the Atlanta Journal-Constitution from May 28, 2006, the Berkshire Eagle from May 23, 2006, the Chicago Sun-Times from June 6, 2006, the Pittsburgh Post- Gazette from May 22, 2006, the Salt Lake Tribune from April 29, 2006, and a commentary by CNN's Jack Cafferty from June 2, 2006.

Mr. President, I think we are doing what we did in the Schiavo matter: We are playing politics with the basic rights of people, and it is wrong.

Mr. President, what is the parliamentary situation?

Mr. President, obviously, I am not going to take the majority leader's time. Certainly, if anybody on the Republican side seeks recognition, I will immediately yield the floor to them. I was hoping they would be here.

I note the chairman of the Judiciary Committee and I are in an asbestos hearing. I was asked by somebody the other day if I felt that marriage would be threatened if we didn't pass this. I have been blessed to be married to the same woman for 44 years. I don't feel threatened by it.

Mr. President, I suggest the absence of a quorum.

Mr. President, the Catholic Charities case in Boston, just 2 years after the introduction of same-sex marriage in America, highlights the growing concerns and indicates that the impact of this development on religious freedom has ceased to be a hypothetical discussion.

As Maggie Gallagher wrote in her Weekly Standard piece ``Banned in Boston,'' ``[w]hen religious-right leaders prophesy negative consequences from gay marriage, they are often seen as overwrought . . . [and that the] First Amendment . . . will protect religious groups from persecution for their views about marriage.''

So who is right? Is the fate of Catholic Charities of Boston an aberration or a sign of things to come? Some say we are overreacting, but the truth is that while the ramifications in the battle for social policy, procreation, and even protecting children may be clear, the real--but hidden--battlelines are for the religious liberty of all faiths. Recently the Becket Fund convened a group of scholars to discuss the implications of same-sex marriage on religious liberty. This group was from all parts of the political spectrum and had varying viewpoints, but all agreed on one thing--the legalization of same-sex marriage posed a real threat to the free exercise of religion.

As I mentioned before, one of the participants, Maggie Gallagher, went on to write a prescient account of the participants' views on this issue, and I admit it was disturbing to read.

In times past, it would have been unthinkable for a Christian or Jewish organization that was opposed to same-sex marriage to be treated as racists or bigots. But today the unthinkable may have become the inevitable. As Anthony Picarello summarizes, ``All the scholars we got together see a problem; they all see a conflict coming. They differ on how it should be resolved and who should win, but they all see a conflict coming.'' Why? Because of cases like that of Catholic Charities in Boston.

As I discussed a little bit on the floor yesterday before I ran out of time, Catholic Charities in Boston has been the adoption provider in Massachusetts for many of the hardest to place children, including children with special needs. Following the legalization of same-sex marriage in Massachusetts, the Boston Globe reported that Catholic Charities of Boston had placed a small number of children with same-sex couples. Cardinal O'Malley of Boston responded that Catholic Charities would adhere to the Vatican statement prohibiting such placements in the future. That produced a hubbub with the Catholic Charities Board that was later quelled, but if Catholic Charities thought that was the end of the issue it was wrong.

Like many States, Massachusetts requires that an entity be ``licensed'' by the State in order to do adoptions. And to get the State license, the entity must agree to obey State laws barring discrimination--including in Massachusetts the prohibition on discrimination based on sexual orientation. When the Massachusetts Supreme Court legalized same-sex marriage, discrimination against same- sex couples was also prohibited. These requirements juxtaposed with Catholic doctrine put the Catholic Church-affiliated Catholic Charities into a bind--one that legislatures, including this one, have often solved by allowing faith-based and religious organizations to maintain their integrity.

Knowing that, Cardinal O'Malley and Governor Romney tried to get a religious exemption for Catholic Charities from the Massachusetts legislature. The silence from the politicians in that State was deafening. Without that protection, the bottom line is that the legislators in Massachusetts chose to put Catholic Charities out of the adoption business.

Some say that the rightwing is pushing to pass this amendment, but I take you back to the scholars from the Becket Fund conference. Marc Stern, the general counsel for the center-left American Jewish Congress can hardly be called a rightwinger, but when asked what he would say to people who dismiss the threat to free exercise of religion as evangelical hysteria his quote was--``It's not hysteria, this is very real . . . Boston Catholic Charities shows that.'' He went on to say that ``in Massachusetts I'd be very worried.'' Stern noted that while the churches themselves might have a first amendment defense if a State government or State courts tried to withdraw their exemption, ``the parachurch institutions [affiliated organizations such as Catholic Charities and United Jewish Communities] are very much at risk and may be put out of business because of the licensing issues, or for these other reasons--it's very unclear. None of us nonprofits can function without [state] tax exemption. As a practical matter, any large charity needs that real estate tax exemption.''

Anthony Picarello of the Becket Fund sounded a more ominous note, that this change could fundamentally alter our view of religious liberty. ``The impact will be severe and pervasive,'' Picarello says flatly. ``This is going to affect every aspect of church-state relations.'' Recent years, he predicts, will be looked back on as a time of relative peace between church and state, one where people had the luxury of litigating cases about things like the Ten Commandments in courthouses.''

Picarello points out something I discussed yesterday--that the church is surrounded on all sides by the government, and often the boundaries are hidden because of the ease with which they are navigated. However, as he notes, ``because marriage affects just about every area of the law, gay marriage is going to create a point of conflict at every point around the perimeter.''

But not all of these scholars agree on the intensity or imminence of these consequences. Doug Kmiec of Pepperdine law school argued that the public could tell the difference between

racial discrimination and the differentiation of traditional and same- sex marriage, saying that racial discrimination is ``irrational, and morally repugnant'' and the issue of same-sex marriage is ``at least morally debatable.'' Doug Laycock, a religious liberty expert at the University of Texas law school, noted that the legal situation is a long way away from equating sexual orientation with race in the law. However, Stern and Feldblurn were much more clear on the coming legal issues that religious organizations will face in the wake of same-sex marriage.

And it is that distinction that is important--if sexual orientation is like race, then anyone, religious or otherwise, who opposes same-sex marriage will be viewed as and likely treated in the same way as the bigots who opposed interracial marriage. It is the political pressure-- and in some cases the legal pressure--that will ``punish'' those of differing opinions.

For Chai Feldblum, a Georgetown law professor who refers to herself as a leader in the movement to advance LGBT--lesbian, gay, bisexual, transsexual--rights, the emerging conflicts between free exercise of religion and sexual liberty are real. ``''When we pass a law that says you may not discriminate on the basis of sexual orientation, we are burdening those who have an alternative moral assessment of gay men and lesbians.'' Raised an Orthodox Jew, Feldblum argues that ``the need to protect the dignity of gay people will justify burdening religious belief, [b]ut that does not make it right to pretend these burdens do not exist in the first place, or that the religious people the law is burdening don't matter.''

What effects could this ``sea change'' have on religious liberty? Let's consider a few examples.

A religious educational institution could have its admissions policies, employment practices, housing rules, and regulation of clubs challenged. For example, Marc Stern is concerned about a California case where a private Christian high school expelled two girls who according to the school announced they were in a lesbian relationship. Will the schools be forced to tolerate both conduct and proclamations by students they believe to be acting in a sinful manner?

Public accommodation laws can be used to force commercial enterprises to serve all comers, which begs the question of whether religious camps, retreats, or homeless shelters are considered places of public accommodation. Could a religious summer camp operated in strict conformity with religious principles refuse to accept children coming from same-sex marriages? What of a church-affiliated community center, with a gym and a Little League, that offers family programs? Must a religious-affiliated family services provider offer marriage counseling to same-sex couples designed to facilitate or preserve their relationships?

Licensing issues will continue to be a bone of contention in not only adoption but psychological clinics, social workers, and marital counselors. We had to face this issue already in the Access to Recovery Program where program administrators were interpreting language in a way that sought to penalize faith-based providers such as Teen Challenge.

And there are probably a plethora of other areas of friction that will emerge.

Will speech against same-sex marriage be allowed to continue unfettered?

Will anyone be able to again say that marriage should be between a man and a woman without being branded a bigot?

Will a minister be able to preach from I Corinthians 6:9 that the unjust and immoral such as adulterers, prostitutes and sodomites will not inherit the earth?

Will our local Catholic Charities lose their tax-exempt status if they do not bend their religious faith to the new norm?

Will a rabbi or priest be forced to preside over same-sex marriages in order to continue to be able to consecrate traditional marriages?

The scope of the ramifications of this debate are unclear, but there is no doubt that very serious issues arise. As Maggie Gallagher noted in her article, ``Marc Stern is looking more and more like a reluctant prophet: `It's going to be a train wreck,' he said `A very dangerous train wreck.' ''

I urge my colleagues to think carefully about the implications of doing nothing to protect the sanctity of marriage. If we do not act, then not only are we leaving this important issue in the hands of unelected judges, we are leaving the fate of all of these faith-based organizations in their hands as well. I urge my colleagues to support this amendment. Let's move forward in the democratic process and let the people decide.

Mr. President, I yield the floor.

Mr. President, this morning we will have a brief period for closing remarks prior to the 10 a.m. vote on the Marriage Protection Amendment. That vote will be on a vote for cloture on the motion to proceed to S.J. Res. 1.

Following the 10 o'clock vote, the Senate will recess in order to attend a joint meeting with the House for the President of the Republic of Latvia, who will be addressing both Houses at 11 o'clock this morning. Senators should remain in the Chamber following the vote so we may leave at approximately 10:40 for that joint meeting.

When we return at noon, we have set aside debate times on two issues. First, from 12 o'clock to 3 o'clock, we will be debating the motion to proceed to the repeal of the death tax. A cloture motion was filed on proceeding to the death tax repeal. That vote will occur tomorrow morning. We have also set aside debate from 3 o'clock to 6 o'clock on the motion to proceed to the Native Hawaiians measure. The cloture vote will occur on that motion to proceed during tomorrow's session, as well.

I add that this week we have other matters to consider, including some nominations. We hope to reach agreements to consider Sue Schwab to be U.S. Trade Representative, the Assistant Secretary of Labor for Mine Safety and Health, and several available district judges who are on the Executive Calendar. We will be scheduling those for consideration through the remaining days this week.

Recognition of the Minority Leader

Mr. President, over the past couple of days, we have had a good, rigorous debate on the future of marriage in America. I thank Senator Allard and Senator Brownback for managing the debate and my colleagues who have come to the floor to very thoughtfully and thoroughly lay out the legal and cultural issues that are at stake.

Throughout human history and culture, the union between a man and a woman has been recognized as the cornerstone of society. Marriage serves a public act, a civil institution that binds men and women in the task of producing and nurturing children--husband and wife, father and mother--building a family in a community over a lifetime.

At its root, marriage is and always has been a public institution that formalizes that family bond. Some on the other side have said that the strength and stability of marriage is a distraction of little concern to the broader public. And I couldn't disagree more.

As it so happens, they used the very same argument 2 years ago. They said the States had little interest in preserving traditional marriage; voters didn't care; other issues were more important. That argument wasn't true then, and it is even less true now.

Marriage, as we know it, is under assault. Activist courts are attempting to redefine marriage against the expressed wishes of the American people. And if marriage is redefined for some, it will be redefined for all.

Last year, voters in 13 States passed by enormous margins State constitutional amendments to protect marriage. Mr. President, 19 States now have State constitutional amendments. Another 26 have statutes doing the same. Alabama voters, yesterday, endorsed an amendment to protect marriage. In total, 45 States have either State constitutional amendments or State laws to protect marriage.

Tennessee, which will give voters the opportunity to voice their opinion this November, is one of six States with similar amendments to its constitution that are pending. No State--no State--has ever rejected an effort to protect traditional marriage when it has been on the ballot.

Voters across the country, from red States to blue, have voted overwhelmingly to protect traditional marriage. But that has not stopped the same-sex marriage activists from taking their campaigns not to the American people but to the courts. Indeed, their losses at the ballot box have only fueled their judicial activism.

Currently, nine States have lawsuits pending. In five States, courts could redefine marriage by the end of the year. In California, Maryland, New York, and Washington, State trial courts have already followed Massachusetts and declared their State constitution's definition of marriage unconstitutional. All of these cases are on appeal.

A Federal judge in Nebraska overturned a democratically enacted State constitutional amendment protecting marriage. That ruling is now under appeal in the Eighth Circuit.

Another Federal court case in Washington challenges the constitutionality of the Federal Defense of Marriage Act. That case is stayed pending resolution of litigation in the Washington State Supreme Court. Court watchers are expecting a ruling soon.

With all of this litigation pending, there is little doubt that the Constitution will be amended. The only question is whether it will be amended by Congress working the will of the people or by judicial fiat. Will activist judges override the clear intention of the American people or will the people amend the Constitution to preserve marriage as it has always been understood?

In Massachusetts, the people have never had a say. The State's supreme judicial court demanded the State sanction same-sex marriage. A majority of the court substituted their personal policy preferences for that of the people, and the consequences of that activism spread far beyond same-sex marriage itself.

I wish to read from a letter from Governor Romney sent to me as we opened the debate on this issue. In it he warns us that Massachusetts is only just beginning to experience the full implication of their court's decision. He writes:

Although the full impact of same-sex marriage may not be

measured for decades or generations, we are beginning to see

the effects of the new legal logic in Massachusetts just 2

years before our State's social experiment.

In the letter, Governor Romney relates the following account:

In our schools, children are being taught that there is no

difference between the same-sex marriage and traditional

marriage.

Recently, parents of a second grader in one public school

complained when they were not notified that their son's

teacher would read a fairy tale about same-sex marriage to

the class.

The parents asked for the opportunity to opt their child

out of hearing such stories. In response, the school

superintendent insisted on ``teaching children about the

world they live in, and in Massachusetts same-sex marriage is

legal.''

Now second graders are being indoctrinated to accept a radical redefinition of marriage against their parents' wishes. That is the reality today in Massachusetts.

It doesn't stop there. Already religious organizations in Massachusetts are feeling the pressure to conform their views as well. In March, the Catholic Charities of Boston discontinued their work placing foster children in adoptive homes. Why? Because they concluded the new same-sex marriage law would require them to place children-- require them--to place children in same-sex homes. Clearly, this is an irreconcilable conflict.

So while we have advocates denying that same-sex marriage poses any conflict with religious expression or with traditional views, we are already seeing in Massachusetts that simply is not the case. We don't know yet the range and the extent of the religious liberty conflicts that would arise from the imposition of same-sex marriage laws, but we do know the implications are serious, that religious expression will be challenged, and that it is a matter of deep public concern. That is why we seek action in the Senate on this important issue.

As I have said before, it is only a matter of time before the Constitution will be amended. The only question is by whom. Is it going to be a small group of activist judges or by the people through a democratic process? I believe the people should make that decision.

We talked about the specific wording of the marriage protection amendment. Nothing in the amendment intrudes on individual privacy. Nothing stops States from passing civil union laws or curtails benefits that legislatures establish for same-sex couples.

It simply protects the States from having civil unions imposed on them from activist courts. It protects the legislative process by letting people speak and vote. It ensures that their voices are heard and their votes are respected.

My own views on marriage are clear. I believe that marriage is the union between a man and a woman for the purpose of creating and nurturing a family. We know that children do best in a home with a mom and a dad. Common sense and overwhelming research tell us so. Marriage between one man and one woman does a better job protecting our children--better than any other arrangement humankind has devised. I believe it is our duty to support this fundamental institution.

Now we will vote on proceeding on the marriage protection amendment. We will vote on whether we believe traditional marriage is worthy of protection, and we will vote on whether the courts or the people will decide its fate.

Mr. President, I yield the floor.

Mr. President, first of all, let me say this has not really been my issue. We have been involved in some other things, but it is one about which I cannot remain silent.

I have to say I am probably the wrong person to talk about the marriage amendment for a couple of reasons. One reason is I am not a lawyer--one of the few in this body who is not a lawyer. However, I have to say sometimes that gives you a better insight into these things than if you are.

I enjoyed listening to some of the liberal Democrats on the Sunday shows saying they are for a marriage between a man and woman, yet immediately starting to back down, backpedal, and think of every reason in the world. It reminds me a little bit of my English as the national language amendment that we had a couple of weeks ago. Everyone was saying they were for it, and then they turned around and thought of reasons to vote against it. That is what is happening now. What does that tell you? It tells you the vast majority of people in America want this amendment.

When they talk about the polling being only 50 percent of the people in America supporting a constitutional amendment for marriage between a man and a woman, they normally are talking to people who are very much for that but think we can do it some other way. They think there is another way of doing it, that we can do it State by State or we can do it statutorily. But it doesn't work out that way.

I think, even not being a lawyer, I can see that a State-by-State approach to gay marriage will be a logical and legal mess that will force the Federal courts to intervene and require all States to recognize same-sex marriages.

Apparently, most people do agree that is the problem. I find all of those who are concerned about the very strong lobby, the homosexual marriage lobby, as well as the polygamous lobby, that they share the same goal of essentially breaking down all State-regulated marriage requirements to just one, and that one is consent. In doing so, they are paving the way for legal protection of such practices as homosexual marriage and unrestricted sexual conduct between adults and children, group marriage, incest, and, you know: If it feels good, do it.

When you look at the history of this country, you can see way back in the founding days that the marriage institution was one of the very basic values on which this country was based. Way back in 1878, Reynolds v. United States, which upheld the constitutionality of Congress's antipolygamy laws, also recognized that the one-man/one- woman family structure is a crucial foundational element of the American democratic society. Thus, there is a compelling governmental interest in its preservation.

That was 1878. That wasn't just the other day. Yet 3 years ago this month,

the U.S. Supreme Court signaled its likely support for same-sex marriage and possibly polygamy and Federal jurisdiction over the issue when it struck down the sodomy ban in Lawrence v. Texas. That happened only 3 years ago this month. The majority opinion extended the reach of due process in the 14th amendment of the Constitution to protect that.

Then they declared--this is significant--they declared:

[P]ersons in a homosexual relationship may seek autonomy

for these purposes, just as heterosexual persons do.

In his dissenting opinion, Justice Scalia stated:

The reasoning leaves on pretty shaky grounds state laws

limiting marriage to opposite sex couples. . . .

That is really much of a concern, when a member of the U.S. Supreme Court agrees with my interpretation as to what that particular interpretation meant.

Now we face a serious problem. Looking at the various States, right now we have 45 States that have passed laws, statutes, or have passed constitutional amendments to their State constitutions that would do away with gay marriage. Look at the percentages.

For those people who say less than 50 percent of the people want a constitutional amendment to protect marriage between a man and a wife, look at the percentages. In my State of Oklahoma, it is 76 percent of the people. That is three-fourths of the people. Down in Louisiana, 86 percent of the people said marriage should be between a man and a woman. This is 45 States out of 50 States. Only 5 States have not had that type of either statutory change or a constitutional amendment.

When you look at the percentages, it is very true that a very large percentage of people believe marriage should be between a man and a woman.

Let me mention something that has not been mentioned quite enough in this debate. A lot of people are not as emotional about this issue as I am. For those who are not, if you look at just the numbers, look at what is going to happen in this country if we follow some of these countries such as the Scandinavian countries. In those societies, they have redefined marriage. In Denmark, as well as Norway, where they have now had same-sex marriages legalized for over a decade, things that are happening there in terms of the society--it has nothing to do with emotions.

According to Stanley Kurtz's 2004 article in the Weekly Standard, a majority of children in Sweden and Norway are born out of wedlock.

Kurtz says:

Sixty percent of first-born children in Denmark have

unmarried parents.

That is in Denmark.

Not coincidentally, these countries have had something close to full gay marriage for a decade or more.

Stop and think. What is going to be the result? The result is going to be very expensive. Many of these kids are going to end up on welfare, so it goes far beyond just the current emotions. I think my colleague, Senator Sessions, I believe it was yesterday, said:

If there are not families to raise children, who will raise

them? Who will take the responsibility? It will fall on the

State. Clearly it will become a State responsibility.

I am not sure. I have listened to many of my colleagues, for whom I have a great deal of respect, talk about some of the ways the language should be legally changed in one way or another to perhaps accomplish something or avoid another problem.

I ask if I could have a minute and a half more?

Maybe this isn't worded exactly right. But this is the only show in town. It is the only opportunity that we will have to do anything. Again, I said maybe I am the wrong person to talk about this. I was talking to my brother, Buddy Inhofe, down in Texas. He is a Texas citizen, I say to my friend from Texas over here. He and his wife Margaret--he is 1 year older than I am--they have been married for 53 years. Every time they have a wedding anniversary, it is just like getting married again.

As you see--maybe this is the most important prop we will have during the entire debate--my wife and I have been married 47 years. We have 20 kids and grandkids. I am really proud to say in the recorded history of our family, we have never had a divorce or any kind of a homosexual relationship. I think maybe I am the wrong one to be doing this, as I come with such a strong prejudice for strong families.

When we got married 47 years ago, there were a couple of things that were said. In Genesis 2:24 it is said:

Therefore a man shall leave his father and mother and be

joined to his wife, and they shall become one flesh.

Matthew 19 says:

Have you not read that He who made them at the beginning

made them male and female, and for this reason a man shall

leave his father and mother and be joined to his wife, and

the two shall become one flesh? So then, they are no longer

two but one flesh. . . .

I can assure you that these 20 kids and grandkids are very proud and very thankful that today, 47 years later, Kay and I believed in Matthew 19:4, that a marriage should be between a man and a woman.

Thank you for the additional time.