Senator Richard Durbin (D - IL)

Statement on the Federal Marriage Amendment
July 13, 2004

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Mr. DURBIN. Mr. President, for those who are witnessing this debate on the floor of the Senate, it is a historic moment. It is rare the Senate engages in a debate on the question of amending this document, the Constitution of the United States. There are so many things that divide us on the floor of the Senate, between Republicans and Democrats, but there is one thing we are united behind, and that is our oath of office. That oath of office is explicit. This, in part, is what it says. Each of us takes this oath. To the best of our ability we will:

..... preserve, protect and defend the Constitution of the United States.

Isn't it interesting that when this Constitution was written, our Founding Fathers wanted to make certain that whoever served as President, Vice President, Member of the House or Senate, would not swear their loyalty to the United States of America but would swear their loyalty to this document. You could not become a Member of this body unless you were prepared, under oath, to say you would preserve, protect, and defend the Constitution of the United States.

The Founding Fathers understood the importance of this document they had written. They knew it embodied within its four corners the basic principles of America. It wasn't a dead document. It was a living document which could be changed. But I think the oath of office which each of us takes is a reminder of our solemn responsibility when it comes to this Constitution.

We may propose amendments to laws, make motions on the floor, pass resolutions, make our speeches, but I am one who believes when it comes to this document we have a special responsibility. It is a responsibility which requires respect and humility--humility.

Before this Senator from Illinois will propose a change in one word in this Constitution of the United States of America, I have to be convinced, I have to be absolutely sure it is essential--essential for this union to continue and essential for the rights and liberties of every American citizen.

Oh, we debate bills back and forth. We change sentences, we change punctuation, we make wholesale changes in the law. But the laws come and go, as Members of the House and Senate come and go. This document endures.

Over 11,000 times Members of the Congress have proposed changing this document. Over 11,000 times they have come to the floor of the House or the Senate and said: The Founding Fathers didn't get it right, they didn't consider this possibility. And over 11,000 different times, overwhelmingly, their suggestions have been rejected. Why? Because of the respect and the humility which each of us brings to this debate on a constitutional amendment.

Today, those who are witnessing this debate are witnessing another attempt to amend the Constitution of the United States. How often has it been done? Since Thomas Jefferson's Bill of Rights--which originally proposed, I believe, had 12 amendments; only 10 were originally approved--we have only amended this document 17 times. One time we realized we made a mistake. We passed an amendment prohibiting the sale of liquor in the United States and a few years later we repealed it. But by and large, only 17 times in the course of the history of the United States of America has this Congress said this document is insufficient; this document does not meet the needs of America; this document must be changed.

To those who are following this debate, and to my colleagues, I will tell them the proposed amendment before us today does not meet the test. It does not meet the requirement to say to those who founded this Nation and to all who carried on since that we need to pass this Federal marriage amendment. I believe it is plain wrong. It is wrong in three specifics.

First, we are talking about the institution of

marriage. Traditionally, marriage is defined by each and every State. One State establishes a certain age of eligibility. Another State will establish a certain blood test that may need to be taken. Another State will limit whether certain members of families can marry. All of these provisions and limitations on marriage are State and local responsibilities. Not once will you find in this Constitution of the United States the requirement that the Federal Government in Washington establish a standard for marriage in America. So what we are discussing today is a proposed amendment to the Constitution that is clearly outside of the purview and scope of this Constitution which we have sworn to preserve and defend.

Second, there is no court ruling that brings us to this moment in this debate. It is not as if some Federal court or even a State court has said this Constitution requires that people of the same gender be allowed to marry. Not one single court in America has said that. So we come here today, the argument being made that we should preempt the possibility that at some time in the future some court will decide that in fact a marriage between people of the same gender in one State must be upheld in other States. There has never--repeat, never--been a case in any State or Federal court that says that. Yet we come to the floor of the Senate today as if the decision were handed down last week and we must stand up once and for all to preserve the right of marriage to be confined to an institution between a man and a woman. It is traditionally a State decision on what defines marriage. There is no controversy that brings us to the floor today.

What is even worse, we come to this debate with this constitutional amendment which has been proposed, and we come to the floor to debate it without a single markup by the Senate Judiciary Committee to debate the language that is being proposed. Does that show respect for the Constitution? Does that show the appropriate humility which every Member of Congress should have? Of course it does not. Those who wrote this amendment were changing it by day. And now they want to change it again. They tell us the language given to us last week has to be changed again--maybe twice.

Does this strike you as a work in progress? Does this strike you as the kind of language which should be put in this enduring document? Or does it strike you that we are taking a roller to a Rembrandt; that we are suggesting changes in our Constitution which have not met the test, the test that they address an issue of enduring significance and that the language crafted should stand beside our Bill of Rights?

Today they argue: We need to make a few amendments in this language. We have been thinking it over this week.

What is wrong with this picture? Shouldn't we take a step back and ask whether this is necessary? Ask whether, in fact, there is a court decision which requires it? Ask whether the language which we are proposing is language which will endure for generations to come?

If we cannot answer each of those questions in the affirmative, then for goodness sakes why don't we move on? I will tell you why we are not. Because this debate is not about changing the Constitution--no. They say in politics for everything that is done, there is a good reason and a real reason. The good reason that is being given for this debate is to change the Constitution. That is not the real reason. The real reason is to change the subject of the President's election campaign because the Republican side of the aisle and those who are supporting this administration don't want to debate this Presidential election campaign on the issues most Americans identify as important in their lives. They don't want to debate the President's economic policy and the squeeze it has put on middle-income families. They don't want to debate what is happening in Iraq. They want to change the subject. They want to debate the future of marriage in America. That, to them, is more important and that is why we are here today. That is why there are statewide referenda in many battleground States like Missouri. And that is why we are hellbent to consider this amendment literally days before a certain political party coincidentally has its convention in the State of Massachusetts. That is what this is all about--changing the subject of the Presidential campaign.

Oh, they tell us in the Judiciary Committee: Incidentally, we are going to bring the flag-burning amendment up again, too. We have had this amendment up before us at other times, but they are anxious for us to vote on this again before the election campaign.

Do you know what I think we need? I don't think we need an amendment to the Constitution. I think we need a permanent law of the land that says there will be no constitutional amendment which will be proposed in a Presidential election year. Frankly, that will cause many of my colleagues to suppress the urge to use this Constitution as some sort of a political platform to try to win votes in an election.

When you take a look at this particular amendment, you find, of course, that we are considering and taking up many days of debate rather than considering other issues we ought to be talking about here on the floor of the Senate.

Do you recall the press conference last week when the Secretary of Homeland Security, Tom Ridge, told America of the danger of al-Qaida, a real danger; that they are plotting massive casualties to be brought on victims in America? We didn't know where or when, but he warned America, along with the Director of the FBI.

Then you probably read yesterday speculation about whether we might have to postpone a Presidential election because of terrorism. And you think to yourself: For heaven's sake, I guess America is still in danger; and sadly we are. Then you might think to yourself: I certainly hope the men and women serving in the Senate are doing everything they can to make our Nation safer. That is a natural reaction, one which you might expect.

All you have to do is look at the calendar of business of the Senate on the desk of every Senator and turn to the back page. You will find the status of appropriations bills that have not been considered by the Senate. Among the first two bills on the list is the Homeland Security appropriations bill--sitting on the calendar of the Senate for almost a month.

We are warned by this administration that our security is in question, that America may be in danger, and we are told by the Republican leadership on the Senate floor that we don't have time to appropriate the money to make America safer. Instead, we are going to debate a constitutional amendment over an issue that has not even reached the point in any court in the land to require a constitutional amendment.

That is just one of many issues that we could be considering.

What have we done to try to reduce the squeeze on middle-income families from increased costs for health care, increased costs for prescription drugs, increased costs for gasoline, increased costs for college education? The answer is nothing. We are too busy debating a constitutional amendment about an issue that does not exist. It says something about the priorities of the leadership.

We have not passed a budget resolution this year. We have 12 appropriations bills, including the Department of Homeland Security, that have not been enacted. This is all about changing the subject.

Paul Weyrich, CEO and chairman of the Free Congress Foundation, was very direct and blunt. He recommended that the President ``change the subject'' from Iraq to the Federal marriage amendment. It won't work because we pick up the newspaper every morning and we are reminded of the brave men and women in uniform who are literally risking their lives in Iraq. We cannot, we should not, and we will not forget them. And our attention will not be diverted from the danger to their lives and the prayers and hopes of their families. Yet that is the political agenda. That is what is before us.

We have bypassed the Judiciary Committee. The suggestion has been that we take this amendment which has been proposed, change it one, two, three, or four times, and vote on it. But the changes may include adding other amendments to it. Is that possible? Could we put in more than one constitutional amendment? Of course. So we have turned into not a Senate but a constitutional convention. Is that what we are supposed to be doing, rather than appropriating money for homeland security, rather than addressing the timely issues that America's families are facing? I hope not.

We have had one hearing on the text of a proposed amendment, and it was less than 24 hours after a new version had been written. This constitutional amendment is changing on a regular basis.

I might say that Senator Cornyn of Texas, on Friday, came and spoke on the Senate floor. He said those who oppose this constitutional amendment, as I do, ``have chosen to boycott good faith desire to have an honest discussion about the issue.'' That was his quote. Senator Allard and others have said similar things.

For the record, the Judiciary Committee, the committee of jurisdiction, has held four hearings on this issue. Senators FEINGOLD, KENNEDY, and I attended all four of those hearings. There was no boycott involved. We attended those hearings and asked questions about this issue. But there was never a markup. It was brought to the Senate floor with changes that are being made as we speak.

In the past, Senator Hatch, now chairman of the Senate Judiciary Committee, rejected this. He said you can't bring a constitutional amendment to the floor without at least going through the Judiciary Committee and looking at the language and seeing if there are better words. Here is what Senator Hatch said in 1979:

To bypass the committee is, I think, to denigrate the committee process, especially when an amendment to the Constitution of the United States of America, the most important document in the history of the Nation, is involved.

That is what Senator Hatch said 25 years ago. But that is not the process he has followed as chairman of the committee today. He has taken a much different path.

This would be, incidentally, only the second time in history in which we would have enacted an amendment to the Constitution of the United States which would restrict the rights of American citizens.

Historically, our amendment process has been to expand the rights and liberties of Americans, African Americans, women, and others to give them voice in the democratic process. This would be the second time in history in which we would restrict the rights of Americans. The other time, as I mentioned earlier, we said with the prohibition amendment that we would restrict the right to sell liquor and alcoholic beverages in America. That is the one other time we did it. We did it because of a temperance crusade brought on by some religious groups and others, and then realized a few years later that it was wrong. This would be only the second time in history when we would use the amendment process to restrict the rights of American citizens.

We have no controversy at hand. The proposed amendment would be unique in that no constitutional amendment has been ratified in response to a State court ruling. There are four constitutional amendments that overrule Supreme Court decisions, but no constitutional amendment has ever been ratified in response to a nonexistent Supreme Court ruling. That is the case here.

As I listened to those on the other side arguing earlier, I couldn't believe some of the things they said. The Senator from Texas said when judges in Massachusetts mandate same-sex marriage on our Nation, they export that marriage to other States. That is not a fact. There is nothing that has happened in the State of Massachusetts which has changed the marriage laws in Illinois, in Wyoming, in Nevada, in Texas. Nothing they have done changes the standard for marriage in my State.

He went on to say that it is a question of whether the people shall have a voice in this process. I certainly believe the people of America should have a voice in the promulgation of law. But in this situation, the people of Massachusetts have a voice and have a process and have before them a constitutional amendment which will eliminate same-sex marriage but protect the rights of civil union. The people of Massachusetts will ultimately vote on that question as will their legislators.

If you want to give the people of Massachusetts a voice in the process, they already have it. They are exercising it. There is no need for a constitutional amendment to either embellish it or reduce it in any way.

Then, the Senator from Texas said we on the Democratic side were trying to stifle debate on this constitutional amendment by not allowing the Republicans to amend it two, three, four times, or more. We are not trying to stifle the debate. That is what this is all about. This exchange is about debate. But how can you debate a moving target? How can you

debate a proposal to the Constitution of the United States which may change 15 minutes from now, an hour from now, tomorrow, or Thursday? Shouldn't the Republican majority that brings this to the floor meet their solemn obligation to put language before us befitting the Constitution and not make this a construction project, a work in progress? That is what they want to do.

The Senator from Nevada on the Republican side said earlier that judicial activists are taking away the power of the legislative branch. That is not a fact. What happened in Massachusetts happened under the Massachusetts Constitution, which is being amended by their legislature as required and submitted to the people of Massachusetts. If the people are to have the final voice on this issue in Massachusetts, that is exactly what is going to happen.

The text of this proposed constitutional amendment, incidentally, is contradictory and unclear. There are some who oppose same-sex marriage but believe that civil unions should be allowed, as they are in many States, and as recognized by many private companies. But the language of this proposed Federal amendment, as it stands today--it may change--says:

Neither this Constitution nor the Constitution of any State shall be construed to require that marriage or the legal incidents thereof be conferred upon any union other than a union of a man and a woman.

The operative words that should have been debated in the committee, and should be debated here are ``the legal incidents thereof.''

What does it mean? Let me give a practical example. In the District of Columbia, they have enacted a law that if you have a partner you are living with of the same gender, you can declare that for purposes of being covered by your partner's health insurance. If one person in that household, two men or two women, is working, and one is not, the person working can claim the partner living at home as covered by the same health insurance policy just as it applies to men and women in marriage.

What is wrong with that? What is so scandalous about that, that people desperate for health insurance coverage would have someone they love and share a home with be covered by health insurance?

Yet this constitutional amendment would put that and other legal incidents of marriage, such as civil unions, in jeopardy.

Let me note what has been said by Vice President Cheney. He was involved in a debate with Senator Lieberman 4 years ago in the Vice Presidential race, and this issue came up. Let me read what Vice President Cheney said when it came to the issue of defining marriage:

It's really no one else's business in terms of trying to regulate or prohibit behavior in that regard. ..... I think different states are likely to come to different conclusions and that's appropriate. I don't think there should necessarily be a federal policy in this area.

That is what Vice President Cheney said. I think he is right.

Let me read what Vice President Cheney's wife said. I am sure it took courage for her to say it, but she did just this week. Lynne Cheney, the wife of Vice President Cheney:

People should be free to enter into their relationships that they choose. When it comes to conferring legal status on relationships, that is a matter left to the states.

I am sure that did not make the Vice President or his wife popular in the White House, maybe not among their Republican colleagues, but they are right. This is a decision which clearly should be left to the States.

Today at lunch, the Senate Historian told us a story of Aaron Burr, a man who had served as Vice President and a man who left the Senate under extraordinary circumstances on March 1, 1805. This is what Aaron Burr said as he left the Senate about this Senate:

..... is a sanctuary; a citadel of law, of order, and of liberty; and it is here--it is here, in this exalted refuge; here, if anywhere, will resistance be made to the storms of political phrenzy and the silent arts of corruption; and if the Constitution be destined ever to perish by the sacrilegious hands of the demagogue or the usurper, which God avert, its expiring agonies will be witnessed on this floor.

You don't hear many speeches like that on the floor of the Senate anymore, but Aaron Burr was correct. This is where the debate has to take place. This is where this debate on this constitutional amendment has to end. This is where Members of the Senate who have sworn to uphold, protect, and defend this Constitution of the United States will remind our colleagues to take a step back and show the respect and humility which this document deserves. To let this constitutional amendment process be taken captive by those who are trying to win votes in November is wrong. Whether it is done by Republicans or Democrats, it is just wrong. I think the American people understand that.

There are strong feelings about a man and a woman that are shared by me and by others, but we also have strong feelings about this document, a document which I have taken an oath under God to uphold and defend. And I will do that by opposing this amendment.