Senator Russell Feingold (D - WI)

Statement on the Federal Marriage Amendment
July 13, 2004

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Mr. FEINGOLD. Mr. President, the Constitution of the United States is a historic guarantee of individual freedom. It has served as a beacon of hope, an example to people around the world who yearn to be free and to live their lives without government interference with their most basic human decisions.

I took an oath when I joined this body to support and defend the Constitution. I am saddened, therefore, to be standing on the floor today debating a constitutional amendment that is inconsistent with our Nation's history of expanding freedom and liberty. It is all the more unfortunate because it has become all too clear that having this debate at this time is aimed at scoring points in an election year. Even a leading proponent of this amendment admits that we are engaged in a political exercise, pure and simple.

Paul Weyrich, president of the Free Congress Foundation, recently stated:

The President has bet the farm on Iraq.

So the proper solution, according to Mr. Weyrich, is to ``change the subject'' from Iraq to the Federal marriage amendment.

Mr. Weyrich also recently stated:

If [President Bush] wishes to be reelected then he had better be up front on this issue, because if the election is solely on Iraq, we're talking about President Kerry.

I am loathe to come to that kind of conclusion. But I believe it to be the truth.

There we have it. This proposed constitutional amendment is a poorly disguised diversionary tactic that is

essentially a political stunt.

Will this proposed constitutional amendment create jobs for mothers and fathers, husbands and wives, and stop the flow of American jobs overseas?

Will this proposed constitutional amendment secure a good education for our children? Will this proposed constitutional amendment improve the lives of American families on any of these issues? Obviously not.

Instead of Congress and the President getting to work on issues that would help American families, we are spending time--in fact a lot of time--on the Senate floor on a poorly thought out, divisive, and politically motivated constitutional amendment that everyone knows has no chance of success in this Chamber. What is even more troubling is that this effort risks stoking fear and encouraging bigotry toward one group of Americans.

So here we are, debating a constitutional amendment in search of a justification. This debate is not really about supporting marriage. We all agree that good and strong marriages should be supported and celebrated. The debate on this floor today is about whether we should amend the U.S. Constitution to define marriage. The answer to that question has to be no. We do not need Congress to legislate for all States, for all time, on a matter that has been traditionally handled by the States and religious institutions since the founding of our Nation. For that reason alone, this amendment should be defeated.

At the outset, let me state in the strongest terms I can that I object to the Senate discussing and debating this proposed constitutional amendment without it first going through the Senate Judiciary Committee. We are here today debating a proposed amendment to our Nation's governing charter. In fact, this is the very first time this particular amendment has even been brought before the Senate, and neither the Judiciary Committee nor the Constitution Subcommittee has debated and marked up this proposal.

One might ask why the supporters of this proposed amendment feel the need to rush to the floor and bypass the committee process. I suspect it is because they fear they do not have enough votes on the committee to approve the amendment and report it to the floor. It may also be that the time it would have taken to examine the amendment and debate it in committee would have interfered with the predetermined political schedule for considering it on the Senate floor. Or perhaps that committee consideration would expose the weaknesses in the amendment and reduce support in the Senate. But in any event, the decision to bypass the committee process is highly unusual and very much to be regretted.

Senate leadership has not previously made a habit of bypassing the committee process when it considers a constitutional amendment. In fact, in this session of Congress alone, the Constitution Subcommittee has held markups on three proposed constitutional amendments: the victims' rights amendment, the continuity of government amendment, and, most recently, the flag amendment. The Judiciary Committee should be allowed to serve its proper role in marking up proposed constitutional amendments before they are brought to the Senate floor.

Respecting the committee process for any piece of legislation is important. But it is absolutely necessary for proposed amendments to the Nation's Constitution. Amending the Constitution should not be taken lightly. A rush to debate and pass this amendment--particularly since it raises so many questions--is not in the best interests of this body or of this country.

I might add that in the past quarter century, only two constitutional amendments were considered by the full Senate without committee consideration. One of these amendments, involving campaign finance restrictions, was discharged from committee by unanimous consent so it could be debated at the same time as campaign finance reform legislation. The other amendment to be brought directly to the Senate floor was an amendment to abolish the Electoral College and provide for the direct election of the President. What happened on the Senate floor to that amendment is very instructive.

In 1979, the current chairman of the Judiciary Committee, the Senator from Utah, was serving in the position that I hold today, the ranking member of the Constitution Subcommittee. He strongly objected to allowing a constitutional amendment to be brought to the Senate floor without first going through the Constitution Subcommittee and the Judiciary Committee.

Senator Hatch stated the following during the debate in 1979:

As the ranking minority member of the Committee on the Judiciary, Subcommittee on the Constitution, I feel very strongly that there are ways to propose constitutional amendments and there are ways not to propose constitutional amendments. In this particular case, I think this is not the way to propose a constitutional amendment, and especially one that has the potential of altering the basic democratic federalism of the American political structure.

He went on to say:

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.

I could not agree more with the words of a then somewhat junior Senator who is now the distinguished chairman of the Judiciary Committee. His view then is exactly my view now, and I think the whole Senate should take his position very seriously.

His position was supported by another distinguished Republican member of the Judiciary Committee, Senator Alan Simpson of Wyoming, who said the following:

We are talking about amending the fundamental law of the land--the law that controls the creation and enforcement of all other laws, the law that embodies the procedural consensus and most basic values of all Americans, that gives our nation much of its unity and our government its legitimacy. We should consider proposals to amend the Constitution more carefully than any other measure that comes before us.

Senator Simpson continued:

I think the American people would strongly disapprove of what is being attempted here. This kind of procedure should not be used for a constitutional amendment. It is bound to adversely affect--to some degree the legitimacy of the process. I know it will affect us all greatly if this amendment is passed without adequate consideration by the present Senate.

And he added the following, and having served with Senator Simpson, I can imagine the gentle irony in his voice:

Perhaps I will eventually learn that Senators do not have time to make considered decisions even on amendments to the Constitution. . . . However, I am not at that point yet. I trust it will never be bad form in the U.S. Senate to demand respect for the legislative process.

Finally, let me quote the then-ranking member of the Judiciary Committee, Senator Strom Thurmond, who served in this body for nearly a half century and as Chairman of the Judiciary Committee for 6 years. Senator Thurmond strongly supported his colleague, the Senator from Utah. He said:

The best place to study these issues is before the full Judiciary Committee of the U.S. Senate. I see no reason why this committee should be short circuited by this bill not being referred here. If a bill of this nature is not going to be referred to a committee to consider it, I do not know why we need Committees in the U.S. Senate.

Senator Thurmond concluded:

The Judiciary Committee is the proper machinery for referral of this resolution. It is set up under our rules for considering a measure of this kind. It should be utilized and should not be sidestepped as is attempted to do here with this procedure.

This debate, which took place just over 25 years ago, had a good outcome. The Senate voted to send the constitutional amendment back to the Judiciary Committee. Those Senators who urged the Senate not to bypass the committee process prevailed.

Now, a quarter of a century later, we are in a similar situation. All of the Democrats on the Judiciary Committee sent a letter to the Committee Chairman a few weeks ago, urging him to follow regular order on this amendment and let the full Committee and Subcommittee on the Constitution debate and mark up this constitutional amendment. I ask that our letter be printed in the RECORD.

There being no objection, the material was ordered to be printed in the RECORD, as follows:

June 25, 2004.
Honorable ORRIN G. HATCH,
Chairman, Senate Committee on the Judiciary, Dirksen Senate Office Building, Washington, DC.

DEAR MR. CHAIRMAN: Last week, the Republican leadership announced that it will bring the Federal Marriage Amendment (``FMA'') to the floor of the Senate during the week of July 12. Press reports indicate that this particular date was chosen because some want to have a vote on this amendment prior to the Democratic convention at the end of the month. We urge you to prevail upon your colleagues in the leadership to allow the Judiciary Committee and the Subcommittee on the Constitution, Civil Rights, and Property Rights to debate and mark up the amendment prior to its being taken up on the floor. The Judiciary Committee has a long and productive tradition of considering amendments to the Constitution. We believe that breaking with that tradition in this instance would be a serious mistake.

The FMA has never before been considered by the Senate. It is a controversial measure sure to inspire heated debate on the floor and in the country. So far, four hearings have been held on this topic in both the Senate and the House. Religious leaders, legal scholars, legislators, psychologists and other health professionals, and advocates for children and families are divided on the need to amend the Constitution in this way. It seems clear to us that there is no consensus in the Senate, or in the country, that this amendment is needed or appropriate.

Furthermore, while the language of the FMA has recently been modified, there is still significant doubt as to its intent and effect. In these circumstances, we believe it is premature to consider the amendment at all, but at the very least, consideration by the Judiciary Committee may clarify and even narrow the issues for the floor.

As you know, it is highly unusual for a constitutional amendment to come to the Senate floor without committee action. In the last decade, constitutional amendments relating to a balanced budget, term limits, flag desecration, and victims rights have all gone through the Judiciary Committee prior to receiving floor consideration. The only amendment that received a floor vote without first being marked up in committee was Sen. Hollings' campaign finance constitutional amendment. That measure was discharged from committee by unanimous consent so it could be debated on the floor during debate on campaign finance reform legislation.

You will undoubtedly recall that during the 96th Congress, a constitutional amendment providing for the direct election of the President and Vice-President was brought directly to the Senate floor. You argued strenuously at that time for ``regular order'': ``As the ranking minority member of the Committee on the Judiciary, Subcommittee on the Constitution, I feel very strongly that there are ways to propose constitutional amendments and there are ways not to propose constitutional amendments....... I think this is the way not to propose a constitutional amendment....... 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.'' Cong. Rec. 5003-5004 (Mar. 14, 1979). Your arguments prevailed and the Senate agreed to recommit the amendment to the Judiciary Committee.

Mr. Chairman, you were right in 1979 that the proper course to follow when an amendment to the Constitution of the United States is proposed is to allow the Judiciary Committee to consider it and report it to the floor before the full Senate is asked to debate it. That is the course that should be followed here. We hope you will continue to protect the jurisdiction of the Committee in discussions with those who want to rush the Senate into a premature vote for political reasons.

Thank you for your consideration.

Sincerely,
Patrick Leahy, Herb Kohl, Charles E. Schumer, Edward M. Kennedy, Dianne Feinstein, Richard J. Durbin, Joseph R. Biden, Jr., Russell D. Feingold, John Edwards.

Mr. FEINGOLD. Unfortunately, our pleas have fallen on deaf ears. The Judiciary Committee, which in the last decade has considered and reported to the floor constitutional amendments dealing with a balanced budget, term limits, flag desecration, and victims' rights has been bypassed for this Federal marriage amendment. I have not heard a compelling argument explaining why the committee process should be ignored in this case.

In fact, I have not heard even a remotely persuasive argument of any kind why the committee process should be bypassed.

The committee process is even more important for this amendment than for some of the amendments we have considered recently. This amendment is being considered for the first time in the Senate. Changes have been made to the language of the amendment within the past few months. Just yesterday, we heard that further changes are being contemplated by some supporters of the amendment. There is significant doubt about how this amendment will be interpreted and what effect it will have on a whole variety of state and local laws and ordinances. It is exactly in this situation that the committee process can be very helpful. Issues can be explored in depth and modifications can be offered to clarify the meaning and effect of the amendment. It is not clear what would happen in our committee if we were given the opportunity to mark up this amendment. But I know we would have a much better idea of what the amendment does and doesn't do than we have today.

The Framers of the Constitution deliberately put into place a difficult process for amending the Constitution to prevent the Constitution from being used as a tool for enacting policies better left to the legislative process. A proposed amendment must pass both houses of Congress by a two-thirds majority, not a simple majority. After a proposed amendment has passed both Houses, it must be ratified by three-fourths of the states.

Citizens for the Constitution, a bipartisan blue-ribbon committee of former public officials, journalists, professors, and others, has suggested a set of guidelines for evaluating proposed amendments to the Constitution. The members of this committee are people who do not necessarily agree with each other on the substantive merits of proposed amendments, but they do agree that a deliberative, respectful process should be followed.

Citizens for the Constitution reports that in the history of our nation, more than 11,000 proposed constitutional amendments have been introduced in Congress, but only 33 have received the needed congressional supermajorities and only 27 of those have been ratified by three-fourths of the States. The bar for amending our Constitution is very high indeed.

One guideline from Citizens for the Constitution, is particularly relevant to our discussion today. The guidelines ask, ``has there been a full and fair debate on the merits of the proposed amendment?'' In this case, the answer is no. There has not been a full debate. We have had four hearings in the Judiciary Committee but there are still unanswered questions about this amendment. This is especially troubling because the sponsors of the amendment have changed its text during the course of our hearings and even stated conflicting interpretations of their amendment. The committee process could help us sort these issues out and narrow them for the floor. But the committee process has been abandoned for this amendment. That is a real shame.

The current procedural situation highlights the problem with bypassing the Judiciary Committee. The Senator from Colorado introduced the first version of the Federal marriage amendment in November of last year. A revised version was then introduced the morning of a hearing in the Judiciary Committee in March of this year.

Now, after bypassing the committee to bring the amendment to the floor of the Senate, we hear that supporters want a vote on yet another version of the amendment. We had four hearings in the Judiciary Committee on the issue of same sex marriage, but none of them concerned this new text that the leadership now wants to bring to a vote. That is why we needed a subcommittee and committee markup on this amendment. So alternative language could be considered and debated. That didn't happen here and that is why there is ``disarray'' among supporters of the amendment as one press report put it this morning. So instead of an up or down vote on the amendment before us, we will most likely have a procedural vote tomorrow. And the reason for that, make no mistake, is that this amendment simply was not ready for floor consideration. It wasn't ready. It should have gone through the Judiciary Committee.

Aside from my objection to the failure to follow the proper process and allow committee consideration of this amendment, as was so eloquently argued 25 years ago by the Senator from Utah, Senator Simpson and Senator Thurmond, I also object to this amendment on the merits.

There is no doubt that the proposed federal marriage amendment would alter the basic principles of federalism that have served our nation well for over 200 years. Our Constitution granted limited, enumerated powers to the Federal Government, while reserving the remaining issues of government, including family law, to State governments. Marriage has traditionally been regulated by the States. As Professor Dale Carpenter told the Constitution Subcommittee last September, ``never before have we adopted a constitutional amendment to limit the States' ability to control their own family law.''

Yet, that is exactly what this proposed amendment would do. It would limit the ability of states to make their own judgments as to how best to define and recognize marriage or any legally sanctioned unions.

Surely both Republicans and Democrats can agree that marriage is best left to the States and religious institutions.

One of our distinguished former colleagues, Republican Senator Alan Simpson, opposes an amendment to the Constitution on marriage. In an op-ed in the Washington Post last September, he stated:

In our system of government, laws affecting family life are under the jurisdiction of the states, not the federal government. This is as it should be. ..... [Our Founders] saw that contentious social issues would be best handled in the legislatures of the states, where debates could be held closest to home. That's why we should let the states decide how best to define and recognize any legally sanctioned unions--marriage or otherwise.

Columnist William Safire has also urged his conservative colleagues to refrain from amending the Constitution in this way. Commentator George Will takes the same position.

I recognize that the current debate on same-sex marriage was hastened by a decision of the highest court in Massachusetts issued last fall. That decision, the Goodridge decision, said that the state must issue marriage licenses to same-sex couples. But the court did not say that other States must do so. And it did not say that churches, synagogues, mosques, or other religious institutions must recognize same-sex unions. Even Governor Romney, who

testified before the committee at our last hearing, admitted that the court's decision in no way requires religious institutions to recognize same-sex unions. No religious institution is required to recognize same-sex unions in Massachusetts or elsewhere. That was true before the Goodridge decision, and it remains true today.

I might add, that this Federal amendment would appear to interfere with the will of the people of Massachusetts who have already taken steps to respond to their court's decision. It would very likely nullify the state constitutional amendment that is currently pending in Massachusetts.

Now, the supporters of the Federal marriage amendment would have Americans believe that if same-sex couples are allowed to marry in Massachusetts, we will soon see courts in other states requiring those States to recognize same-sex marriages, too. But this is a purely hypothetical concern, hardly a sound basis for amending our Nation's governing charter.

As Professor Lea Brilmayer testified at a Constitution Subcommittee hearing, no court has required a State to recognize a same-sex marriage performed in another State. And as Professor Carpenter testified, ``the Full Faith and Credit Clause has never been understood to mean that every state must recognize every marriage performed in every other state. Each state may refuse to recognize a marriage performed in another state if that marriage would violate the public policy of that state.''

In fact, Congress and most States have already taken steps to reaffirm this principle. And these actions so far stand unchallenged. In 1996, Congress passed the Defense of Marriage Act, a bill I did not support, but it is now the law. DOMA is effectively a reaffirmation of the Full Faith and Credit Clause as applied to marriage. It states that no State shall be forced to recognize a same-sex marriage authorized by another state.

In addition, 38 States have passed what have come to be called ``State DOMAs,'' declaring as a matter of public policy that they will not recognize same-sex marriages.

There has not yet been a successful challenge to the Federal or State DOMAs. Of course, it is possible that the law could change. A case could be brought challenging the Federal DOMA or a State DOMA, and the Supreme Court could strike it down. But do we really want to amend the Constitution just in case the Supreme Court in the future reaches a particular result? We should all pause and think about the ramifications of our action before we launch a preemptive strike against the governing document of this Nation.

Former Representative Bob Barr, the author of the Federal DOMA, strongly opposes amending the Constitution. He believes that amending the Constitution with publicly contested social policies would ``cheapen the sacrosanct nature of that document.''

He also warned:

We meddle with the Constitution to our own peril. If we begin to treat the Constitution as our personal sandbox, in which to build and destroy castles as we please, we risk diluting the grandeur of having a Constitution in the first place.

My colleagues, those are the words of the author of the Federal DOMA statute. That is what he said about the wisdom of trying to amend the Constitution in this manner.

Concerns have also been raised that the Federal marriage amendment could prevent the people of a State from choosing to recognize civil unions or grant domestic partnership benefits at the State level. The proposed amendment could be construed to challenge already existing civil union and domestic partnership laws or to bar future attempts to enact such laws. Representative Barr also warned that the proposed marriage amendment could apply to not only States, but private sectors as well. Certainly, our hearings in the Judiciary Committee did not lay these concerns to rest. If anything, they made them stronger.

We should not seek to amend the Constitution in a way that would reduce its grandeur. Under our longstanding system of federalism, we should leave the regulation of marriage to the States and religious institutions and get to work on the real issues that Americans are facing and deserve our attention and action.

As I stand here, there are Americans across our country out of work, languishing in failing schools, struggling to pay the month's bills, or worrying about their lack of health insurance. Instead of spending our limited time this session on a proposal that is destined to fail and will only divide Americans from each other, we should be addressing the issues that will make our Nation more secure and the future of our families brighter.

I urge my colleagues to oppose this ill-advised and divisive constitutional amendment.

I yield the floor.