John Cornyn

Mr. CORNYN

Mr. CORNYN. I would be glad to respond to that because I think that is an important issue. No one has suggested we should not make this discussion about preserving traditional marriage. I would say there was no attempt to try to limit any debate, any amendments that might be offered--for example, the single-sentence amendment, which is the first sentence of Senator Allard's amendment--to amendments that are germane to the preservation of traditional marriage. So I must say that while I respect my colleague--and he knows that, and, as he said, there are many things we agree on--I simply disagree that our refusal to take the offer that would allow no amendments, whether or not they are germane to the issue of traditional marriage, in no way opens this matter up to non-germane or extraneous amendments. I would be pleased--at least speaking personally; of course, any Senator could lodge an objection to the unanimous consent request--for us to stay on the subject because I think this has been a very helpful debate. I would also ask unanimous consent that a letter to Ms. Margaret A. Gallagher dated July 11, 2004, and a letter from the Liberty Counsel dated July 10, 2004, be printed into the Record.

Mr. CORNYN. At this point, I yield the floor.

Mr. CORNYN. Could I ask for a brief unanimous consent request?

Mr. CORNYN. I believe we have been going back and forth to each side. I certainly want to accommodate the Senator so everyone will be able to be heard, but we also have some folks on our side.

Mr. CORNYN. Mr. President, we have additional speakers on our side who are ready, but the practice has been to go back and forth, so we would be glad to allow time for our Democratic colleagues.

Mr. CORNYN

Mr. CORNYN. 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.

Mr. CORNYN. 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. CORNYN. 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.

Mr. CORNYN. 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. CORNYN. 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. CORNYN. 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.

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

Mr. CORNYN. With that exception, I have no objection.

Mr. CORNYN

Mr. CORNYN. Mr. President, I ask unanimous consent a member of my staff, Mary Alice Hamby, be granted the privilege of the floor during the duration of the debate.

Mr. CORNYN

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

Mr. CORNYN. 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.

Mr. CORNYN. 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. CORNYN. 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.

Mr. CORNYN. I will be glad to yield for a question.

Mr. CORNYN. 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.

Mr. CORNYN. 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.

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

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

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