Senator Wayne Allard (R - CO)

Third Statement on the Federal Marriage Amendment
July 13, 2004

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The PRESIDING OFFICER. The Senator from Colorado.

Mr. ALLARD. Mr. President, we have been hearing the point that there is no threat and we are being somewhat paranoid about this issue. But I have a summary here of the court actions that have been brought up in the various States throughout this country. I am amazed, frankly flabbergasted, at the number of cases that have been brought before the various State courts and in some cases the Federal court. I thought I would take a moment to go through some of these cases. I think once you have seen the whole litany of cases here you begin to understand there is an organized, concerted effort starting at the State courts and then eventually moving into the Federal courts and hopefully, by those who support same-sex marriage, to the U.S. Supreme Court for a favored ruling. I will start with Alabama.

This case has been recently dismissed as of April. They had two men in an Alabama State prison who sued the State for the right to marry each other. They said they had a Federal constitutional right to marriage. As I mentioned, this case was dismissed.

In Alaska, there is an interesting case, a case pending currently in the State supreme court. The ACLU has sued to prevent Alaska from granting benefits to married couples if the State does not provide the same benefits to same-sex couples. This case has been argued in the Alaska Supreme Court and could be decided any day.

In Arizona, again the State supreme court has refused to hear a case brought there where two men were denied a marriage license and sued in State court. They lost in the district court on their first appeal and curiously the gay

rights groups tried to talk them out of pursuing their case because it interfered with the group's national litigation strategy. Let me repeat this. Gay rights groups tried to talk them out of pursuing their case because it interfered with the group's national litigation strategy. On May 25 of this year, the Arizona Supreme Court refused to hear their appeal which should bring this particular litigation to an end.

In the State of California, we have a number of pending cases. That is probably not a surprise to anybody here on the floor. There is a case pending in the State supreme court about San Francisco's mayor who defied State law and began issuing marriage licenses to same-sex couples in February of this year. They made a court case about it. The States refused to register the marriages and same-sex couples from 46 States received licenses while San Francisco was issuing licenses. Several lawsuits were filed to challenge San Francisco's action. They are now consolidated in the California Supreme Court. The State of California is defending its traditional marriage laws and the statewide initiative that passed with 60 percent of the vote in 2000. Again, a decision is expected on that particular case.

I would like to correct the record. I think one of the colleagues made the statement that there are no Federal court challenges to DOMA, the Defense of Marriage Act. Actually, in Florida there is a Federal court challenge to DOMA, or the Defense of Marriage Act. A private attorney announced on the 11th of this month that he would soon file a Federal lawsuit challenging the DOMA law. The lawsuit is expected to be filed as we move forward.

We have two separate cases pending in State trial court in Florida. Two cases have been filed in the State trial court challenging Florida's traditional marriage laws. Again, this first case is a class action filed in Broward County by a private attorney. Later it was filed in Key West by the National Center for Lesbian Rights.

It was interesting to get the public reaction when the private attorney talked about filing his Federal lawsuit in Florida with the Federal court challenge, and the reaction from those groups supporting same-sex marriage. They didn't want him to file that because they felt it would bring it too quickly to the U.S. Supreme Court and they would not be prepared in order to make the case in front of the Supreme Court. I thought that was an interesting reaction in the public media when that case was talked about being filed.

In Georgia, there was a case seeking recognition of a Vermont civil union, which was rejected by Georgia's State court. In Burns v. Burns, the parties sought to have a Vermont civil union treated as a legal marriage in Georgia and the trial court and court of appeals refused to treat a Vermont civil union as a marriage and the Georgia Supreme Court declined to review the case.

In Indiana, there is a case pending in the Indiana Court of Appeals. Three same-sex couples sued in Marion County Superior Court for the right to marry under the Constitution.

This case was dismissed and is now on appeal to the intermediate State appeals court. This case is Morrison v. Sadler.

In Iowa, there is a same-sex divorce case that was dismissed. Two women entered into a civil union in Vermont and later asked an Iowa trial court to grant them a divorce.

They are coming at this from various angles.

In December 2003, the Iowa court initially granted the divorce, but after his action was challenged because Iowa did not recognize same-sex marriage in Vermont civil unions, the judge reworked the order dividing the couple's property. The civil union was not recognized.

In Maryland, a lawsuit was filed July 7 of 2004. The ACLU filed a lawsuit in State court demanding the State grant marriage licenses to same-sex couples.

In Massachusetts, activists announced on June 16, 2004, that they would challenge in court the 1913 Massachusetts law that prevents same-sex marriage to out-of-State couples. I believe that case was filed today.

In Montana, there is a case pending in State supreme court. The Montana chapter of the ACLU sued on behalf of two lesbian employees of the Montana State University system challenging that the State discriminates against gay and lesbian employees by giving spousal benefits only to married couples. The trial court dismissed the case in November of 2002 and the case is now pending on appeal before the Montana Supreme Court. This case is called Snetsinger v. Board of Regents.

In Nebraska, there is an interesting Federal case. There is a Federal case pending in Federal District Court. The ACLU has filed suit to challenge a State constitutional amendment that defines marriage as man and woman and bars civil unions or domestic partnerships. They went much further than what my amendment provides. The ACLU argued that the State constitutional amendment violates the U.S. Supreme Court's decision in Romer v. Evans. In a preliminary ruling, the Federal district judge indicated sympathy with the ACLU claim and the Nebraska attorney general Jon Bruning told the Senate Judiciary Subcommittee on the Constitution that he expects Nebraska to lose the case. This is the constitutional amendment in Nebraska that was passed with 70 percent of the voters in Nebraska. I think this has all sorts of implications. It has been filed in the district court.

There is a case in New Jersey pending in the State court of appeals. In 2002, Lambda Legal filed a suit in State court on behalf of same-sex couples seeking to marry. The State district court dismissed their case and Lambda has appealed to the intermediate State appeals court. The case is called Lewis v. Harris. The town of New Asbury, NJ has announced that it will file amicus briefs in support of the same-sex couples.

In New Mexico, there is a case pending in State trial court. The Sandoval County clerk issued marriage licenses to same-sex couples in February of 2004. The New Mexico Supreme Court has agreed to hear arguments regarding the issuing of marriage licenses to same-sex couples in Sandoval County. It is unclear if the court will decide the case this summer or fall, or if the decision will be delayed until 2005.

In New York, there is a case pending in State trial court in March and April of 2004. The ACLU and Lambda Legal

each filed lawsuits arguing that to deny same-sex couples the right to marry one another violates the New York Constitution.

In North Carolina, a case was withdrawn by a same-sex couple. In March 2004, they were denied a marriage license by Durham County, NC. So they filed a lawsuit.

In Oklahoma, the State ballot initiative may be challenged. The ACLU is threatening to challenge a November 2004 ballot.

In Oregon, there is a case on appeal to the State intermediate court in Multnomah County, which includes Portland, which began issuing marriage licenses to same-sex couples in February of 2004. More than 3,000 marriage licenses were issued. On April 20, the State trial court ruled the marriage licenses conducted over the past 2 months were legal and that Oregon must register the marriages as valid. The State court of appeals stayed the lower court's order requiring the State to recognize the 3,022 marriage licenses of same-sex couples in the Portland area.

In Pennsylvania, a lawsuit has been threatened after a same-sex couple was denied a marriage license.

In Rhode Island, the State attorney general stated on May 17 that he interpreted Rhode Island law to require recognition of Massachusetts same-sex marriages.

In Tennessee, the Associated Press reported a same-sex couple was planning to file a lawsuit.

In Texas, a same-sex divorce case was dismissed there.

In Virginia and Washington, there are three cases pending in State trial court.

In West Virginia, we have a case dismissed by the supreme court with a possible review by the U.S. Supreme Court.

This gives an overview of the amount of lawsuits that have been filed throughout this country in trying to establish a case in certain venues that could be appealed to a higher court.

This is an organized effort. I think when you look at the cases that have been filed in the various courts, it is hard to say marriage shouldn't be protected. Marriage is under assault. That is why it is important that we move forward with this particular piece of legislation because, as has been stated time and time again here on the floor of the Senate, when you look at the Goodridge case and the Lawrence v. Texas case, and then the Constitution as it applies between the interaction between States and comments from members of the U.S. Supreme Court, there is definitely a threat to traditional marriage.

My hope is we can get this passed, get it through the House, and get it before the people of America so they can help decide this issue. If they are successful, then it means the courts will not have defined marriage. The American people will have had an opportunity to enter into this debate. With this particular amendment before us, through their elected representatives the American people will have an opportunity to have their voice heard in the Senate. It was brought up in the House. As they will read it in the papers this fall, later on people will have an opportunity to express their views through the Members in the U.S. House of Representatives. Then at some point in time, if we get enough votes--a two-thirds vote in both the House and Senate--then it goes to the States and three-quarters of the States ratify it, then this means it is debated in the legislatures and the American people will have an opportunity to again make their views known about how they feel about protecting marriage.

This was put in place by our Founders because ultimately they did not want to have the courts to have the final say on issues where there was a large percentage of the population in America who felt they would have an opportunity to address this issue through a constitutional amendment.

This is something that has been laid out by our Founders. I think it is time we have this amendment before us now for debate.

Let me make one additional comment. In the Oregon State Court of Appeals, they decided this week that the State must enroll the marriages, which would be to recognize marriages.

This issue is moving forward. I am pleased about the amount of support we have had from Members of the Senate coming forward and expressing their support. I thank them for that. I thank them for the leadership of the Senator from Pennsylvania and the Senator from Kansas. I thank the Senator from Alabama for his support. Without them, I think a good deal of the substance of this debate would have been missed. I appreciate their effort and dedication to the family.

I yield the floor.