Senator John Cornyn (R - TX)

Second Statement on the Federal Marriage Amendment
July 13, 2004

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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.