Senator John Cornyn (R - TX)

Statement on the Federal Marriage Amendment
July 12, 2004

---

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.