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Week Ending July 9, 2004

Senate Joint Resolution 40 proposing an amendment to the Constitution of the United states relating to marriage.

BRIEF

The resolution would declare that marriage in the US can only be defined as the union of a man and a woman. Consequently, the Constitution of any State would be prohibited from being interpreted to mean that marital status and legal benefits and responsibilities of marriage can be conferred upon any union other than that of a man and a woman.

The resolution met with opposition that questioned not so much if marriage should be defined as a union only of a man and a woman but rather if a Constitutional amendment was necessary or could even be accomplished on the issue. A Constitutional amendment first requires passage in the Senate by two thirds (67 votes) and those votes were clearly not available. After approval on Capitol Hill then three quarters of the State legislature would need to pass the amendment. The Republican effort, some held, was little more than a political move to rally anti-gay sentiment before the 2004 Presidential election.

Supporters generally held that preservation of marriage as the union between a man and a woman was essential to the preservation of U.S. society and cited statistics from other countries where after allowing marriage of homosexuals there was a decline in two parent households and marriage in general. Supporters also held that States allowing same-sex marriages would lead to other States having to accept that decision even if the State constitution prohibited calling such unions a ‘marriage’. Also, if a Supreme Court decision concluded that same-sex marriage was deserving of due process under the law, supporters anguished, then no State constitution could override that decision and all States would have to accept same-sex marriage as legal.

Opponents held that the proposed amendment would override States rights to determine what marriage means and that such an issue truly should be up to the States where legalities of personal conduct is most often decided. They also cited legal precedent that argued against the notion that approving same-sex marriage in one State would mean another State would have to accept it.

Opponents also held that with so many unfinished appropriation bills, concerns about the war in Iraq and terrorism that taking time to consider such an amendment was inappropriate.

Sponsor: Senator Wayne A. Allard (R-CO)

Vote: Cloture was not invoked. The motion failed by 48 to 50 vote. (RV 155) To proceed would require 60 votes. The measure was withdrawn.

MORE INFORMATION

SOME QUOTES FROM THE DISCUSSION

General purposes of the Resolution:

Senator Wayne Allard (R-CO) “All we do is define marriage at the Federal level. Then we say it is up to the States now to decide how they want to deal with civil unions and domestic partnerships. We needed to do that in order to limit the power of the courts.”

Senator James Bunning (R-KY) “The first thing we have to understand is that Government did not create marriage or the union between man and woman. It is something much more fundamental than legislation or laws. Marriage is older than the Constitution of the United States. It is older than America. Marriage exists in every known human society, bringing men and women together to create and to provide for the next generation of society, and it is not the right of any government anywhere to undermine or destroy it. It is a shame that some of my colleagues in the Senate do not recognize the pressing need before us to safeguard a cultural institution that has served human beings so well for thousands of generations. We must act before it is too late.”

Senator Hillary Clinton (D-NY) “We could stand on this floor for hours talking about the importance of marriage, the significance of the role of marriage in not only bringing children into the world but enabling them to be successful citizens in the world. How many of us have struggled for years to deal with the consequences of illegitimacy, of out-of-wedlock births, of divorce, of the kinds of anomie and disassociation that too many children experienced because of that.”

Senator Clinton again. “Is it really marriage we are protecting? I believe marriage should be protected. I believe marriage is essential, but I do not, for the life of me, understand how amending the Constitution of the United States with respect to same-gender marriages really gets at the root of the problem of marriage in America. It is like my late father used to say: It is like closing the barn door after the horse has left.”

Senator Orrin B. Hatch (R-UT) “Gay people have a right to be free, to not be discriminated against. They have a right to live in their relationships within the privacy of their own homes, just like others who have different approaches toward life. But that doesn't give them or anybody else the right to define traditional marriage.”

On the question of State sovereignty regarding same-sex marriages:

Senator Russ Feingold (D-WI) “My understanding of what is happening in the States indicates to me that the States are well able to handle the issue of marriage on their own. The tenth amendment of the U.S. Constitution clearly states: ‘The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.’”

Feingold again, “Furthermore, the courts have long held that no State can be forced to recognize a marriage that offends a deeply held public policy of that State. States, as a result, have frequently and constitutionally refused to recognize marriages from other States that differ from their public policy. Polygamous marriages, for example, even if sanctioned by another State, have consistently been rejected. Marriages between immediate family members have also been rejected by States, even if those marriages are accepted in other parts of the country. In no case that I know of has the full faith and credit clause of the U.S. Constitution been used to require a State to recognize a type of marriage that would violate its own strong public policy. So States have been on their own with respect to family law, including marriage.”

A dialogue between Senator Jeff Sessions (R-AL) and Senator Jon Kyl (R-AZ) ON STATE SOVEREIGENCY

Senator Sessions: “If the Supreme Court found, as they indicated that they may in the case of Lawrence v. Texas, that marriage under the Due Process or Equal Protection clauses of the Constitution has to include same-sex marriages rather than just the traditional marriage form, will that not wipe out all of the constitutional amendments that are being passed in the States of America and all the statutes in America and the Defense of Marriage Act that we passed in this Congress?

Senator Kyl: “Of course, the answer is yes. Once the Supreme Court has spoken, and there is language in this Lawrence case that suggests to many that the Court would be inclined to rule in that fashion, then the Court has just enunciated the supreme law of the land and no State constitutional provision or Federal law in any way could attempt to override that. That would be the law of the land.”

Senator Sessions: “If California passed it with 90 percent of the vote, or 60 percent, as I believe they did pass a statute by ballot initiative, no matter what the people voted, it would be trumped and wiped out by the ruling.

Senator Kyl: “Mr. President, the Senator from Alabama is correct. The Federal Constitution trumps State constitutions. Even if the people of a State amend their own State constitution, were the Supreme Court to declare that same-sex marriages are required by the equal protection or the due process clause of the U.S. Constitution, that would be the supreme law of the land, overriding any other Federal law, State law, or State constitution.”

Senator Orrin B. Hatch (R-UT) “The fact is, the judiciary is deciding for all of America, and an obscure supreme court in Massachusetts, at that is deciding this issue for all of America. So the States really do not have a chance to decide this issue on their own because if the supreme court of the State of Massachusetts, if that ruling is continuously upheld, and it appears it will be, even by the Supreme Court under the Lawrence case, then every State in the Union is going to be bound by those marriages.”

Does the Senate have better things to do?

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

Senator John McCain (R-AZ) “Many, if not most, Americans have reasoned that there is no overriding urgent need to act at this time. And they are right to do so. The legal definition of marriage has always been left to the states to decide, in accordance with the prevailing standards of their neighborhoods and communities. Certainly, that view has prevailed for many years in my party where we adhere to a rather stricter federalism than has always been the case in the prevailing views among our friends in the Democratic Party. Some fear that the decision in Massachusetts will ultimately result in the imposition of different views on marriage in communities where the traditional view of marriage is considered singular and sacred. But there really is insufficient reason presently to fear such a result.”

AND THE POLITICS OF THE MATTER

Senator Edward Kennedy (D-MA) “Last Friday, Senator Reid informed the Senate that the Democrats were willing to accept a time agreement with a straight up-or-down vote on the Federal marriage amendment on Wednesday. We have cleared it on our side to do that, he said; we are ready to move forward on it; we are ready to rock and roll. Those were the words of the Senator from Nevada. And the Republican leadership refused our offer.”

Senator Patrick Leahy (D-VT) “The timing of this debate strongly supports my point that the FMA's supporters are concerned not with preserving the sanctity of marriage, but with preserving Republican politicians.”

Senator Patty Murray (D-WA) “Mr. President, we are less than 2 weeks away from our summer recess, and we will soon attend our respective parties' conventions. It is important to ask what we have accomplished so far this year. Very little.

“We have hundreds of thousands of troops getting shot at in Iraq with no plan in place to stabilize that country.

“We have sky-rocketing healthcare costs with no plan in place to help Americans get the healthcare they deserve.

“And we have not done our work around the Senate: we have no budget, we have not done our appropriations, and instead of dealing with these real threats to the American people we are taking up the Senate's time on an issue that is not going to create one job, bring one soldier home, educate another child, or get a senior affordable prescription drugs.

“So what are we doing? A constitutional amendment to ban States and local governments from extending legal marriage rights, responsibilities and obligations to same-sex couples.

“With all the challenges we as a country currently face, this is one of the last things on which the Senate should be working. This is election-year politics pure and simple, in its crassest and worst form.

“The proponents of this amendment are trying to rally those who adamantly oppose gay marriage before the fall elections and distract from an inability to deliver on the priorities of the American people.” ## All Rights Reserved. No reproduction or distribution without written permission from TheWeekInCongress.com.