Senator Orrin Hatch (R - UT)

Statement on the Federal Marriage Amendment
July 13, 2004

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Mr. HATCH. He hopes. I have not noticed the great sense of humor lately of the Senator from Nevada but that was very good.

I will respond to some of the arguments that my colleagues have been making against this measure today.

First, I thank them for coming to the floor and making themselves heard. This is an extremely important issue and it deserves a serious debate. After all, we are talking about traditional marriage. We are talking about traditional marriage that has existed for more than 5,000 years that apparently is going to be overturned if we do not do something about it.

One argument I have heard from my colleagues on the other side of the aisle is on behalf of States rights. Yesterday, the distinguished Senator from California argued that we run the risk of violating the sacred rights of the States if we pass this amendment. This morning, her colleague from California, the junior Senator from California, made the same point. The distinguished Senator from Wisconsin, too, believes marriage should be defined in the States.

When Senators who normally argue for extending national power start citing George Will and Bob Barr, we should probably look at their arguments with a heightened level of scrutiny and maybe even security because there is something wrong here when these liberal Senators are using as their champions George Will and former Congressman Barr, who is one of the most conservative Congressmen who ever sat.

When legislators and other advocates who not only tolerate but actually embrace repeated judicial amendments to the Constitution--I will talk about judicial amendments to the Constitution--there is sudden resistance to popular amendments, the people's amendments, it must be taken with at least a grain of salt.

We are talking about judges taking over and amending the Constitution at will, which is what is happening in our society, and not only Justices of the Supreme Court but four liberal activist justices on the Massachusetts Supreme Court, binding every State through the full faith and credit clause to their concept of same-gender marriage. It was a 4-to-3 vote. Three liberal justices disagreed with the four liberal justices in Massachusetts.

They surely know, these friends of ours on the other side who are suddenly finding the importance of States rights, they surely know that by opposing a constitutional amendment to protect marriage, judges will continue imposing same-gender marriage over the will of the American people or over the will of the people in the States.

Their constituents deserve better than these misleading arguments. They know that.

We did not choose the schedule for this issue. It was chosen for us. And we do act reluctantly.

Let me pose a question. If this is such a political issue, why did President Bush and Vice President Cheney indicate on the campaign trail in 2000 that it was premature to pursue an amendment? They both did, by the way.

The American people were as opposed to amending traditional marriage then as they are now. The reason for this change in strategy is quite simple. In the year 2000, an amendment was premature. It is no longer.

In 1996, not one State required same-gender marriages--not one. Now, however, Massachusetts has. Massachusetts has, I have to say, because same-gender marriage is the law of the Commonwealth of Massachusetts, determined by four activist, liberal justices.

Today, 46 States, for the first time in history, have same-gender married couples living in them. That was not the case in the year 2000. And the argument that it was premature to call for a constitutional amendment was a good argument at that time, but not today, with 46 States with same-gender married couples living in them, and one State imposing its will through judicial legislation, if you will, on all 50 States.

Eleven States are having not only their traditional marriage laws but even a State amendment, in the case of Nebraska, targeted by committed interest groups. In Washington State, a couple married in Oregon is seeking recognition of their marriage. In New York, Attorney General Eliot Spitzer has amazingly concluded that even though New York law explicitly limits marriage to between a man and a woman, he--I guess the ``god almighty'' Attorney General of New York, Eliot Spitzer--will recognize same-gender marriages performed out of State.

He may be right because under the full faith and credit clause, that is what is going to be imposed on all States because of four avant-garde liberal justices in Massachusetts.

The list of legal challenges goes on. In the year 2000, when President Bush and Vice President Cheney urged patience on this issue, traditional marriage was secure. The States could handle this issue on their own. Today, they no longer can, all because of four activist, liberal justices in Massachusetts versus three liberal justices in Massachusetts, in a 4-to-3 verdict.

Courts are poised to remove this issue from them, destroying the democratic principle of self-governance that some of these folks on the other side are arguing should never be done. Why, the States ought to have the right to determine these things for themselves.

Well, let me go over that one more time.

Courts are poised to remove this issue from the States, destroying the democratic principle of self-government that our Constitution was established to guarantee.

Gov. Mitt Romney, in his testimony before our committee last month, got the point and demonstrated the impact of his State court's decision to sanction same-gender marriage. I quote him:

The effect of one state recognizing same-gender marriage will not be confined to Massachusetts alone. Our state's borders are porous. Citizens of our state will travel and may face sickness and injury in other states. In those cases, their spousal relationship may not be recognized, and it would be likely that litigation would result. Massachusetts residents will move to other states, and thus issues related to property rights, employer benefits, inheritance, and many others will arise. It is not possible for the issue to remain solely a Massachusetts issue; it must now be confronted on a national basis.

We need an amendment that restores and protects our societal definition of marriage, blocks judges from changing that definition, and then, consistent with the principles of federalism, leaves other policy issues regarding marriage to State legislatures. That is how the States can control this. That is the right way to have the people in charge rather than four liberal justices imposing this on all of America.

Like I say, I think gay people have a right to their lifestyle, certainly in the privacy of their home. But they do not have the right to impose that lifestyle or to impose their views on everybody in America by changing the definition of marriage. They should not have that right.

The real threat to the States is not the constitutional amendment process, in which the States participate, but activist judges who disregard the law and redefine marriage in order to impose their will on the States and on the whole Nation.

Governor Romney's diagnosis is correct. At this point, a commitment to States rights is a recipe for depriving States of any authority over the matter.

And so our Republican leadership did what leaders do, they adjusted their direction. Because the situation today is vastly different than what we faced in 2000, we require a different solution.

Our goals are not what Mrs. Boxer, the distinguished Senator from California, has described. Nobody here is concerned about whether same-gender couples should care about each other. Nobody here denies them that right. Nobody here is even concerned about that. And nobody is concerned about whether they are moving in down the street.

What we are concerned about is the likelihood that the courts are going to amend the laws in every State in the land by judicial fiat. We are concerned that a small interest group is lobbying the courts to do its dirty work, hoping that judicial fiat will accomplish what it cannot achieve in open political debate.

In not one State has the legislature amended its laws to allow for same-gender marriage--not one. We are fooling ourselves if we think that the courts care. They have already begun their work to undermine traditional marriage. And rest assured, more is on the way. If the States think they have sufficiently protected their traditional commitments to marriage, they had better think twice.

What we are witnessing is an unprecedented usurpation of the people's will. But those who support this judicial disregard for popular authority do not bravely defend this irresponsible activism. Instead, they take the easy way out. It should be left to the States, they say. Easier said than done. The fact is, these decisions are already being removed from the people by judicial fiat, by four justices in Massachusetts, of all places. The laws of this country, the laws of every State in the Nation, will be amended to allow for same-sex marriage absent our action. The two distinguished Senators from California, and the distinguished Senator from Wisconsin, Mr. Feingold, and many others, do not address this likelihood in the least--not in the slightest.

As Senator Daschle is aware, the people of South Dakota are adamantly opposed to judicial amendment of their traditional marriage laws, and I suppose in most other States as well--in fact, every other State. For that

reason, he has said he opposes same-gender marriage. But what happens when a gay couple moves from Massachusetts to South Dakota and seeks to have its union recognized? On this point, which is really the only question in this debate, he and his allies fall silent. What happens? Under the full faith and credit clause, that marriage is going to have to be recognized.

Unfortunately, the will of those citizens will not matter in the least to a judiciary bent on securing same-gender marriage throughout the land. We have demonstrated through our discussion of the Lawrence case, the Romer case, and the Defense of Marriage Act, that the courts are ready to act. It is telling that in a constitutional debate we have not heard one peep from the opposition about these relevant legal precedents.

I can understand how these discussions might make the opposition uncomfortable. Their lesson is clear. Same-gender marriage will replace traditional marriage unless we act. It is that simple.

And you folks out there watching this, you better tell your Senators they better act on this or traditional marriage is going to bite the dust because of four activist, liberal justices from Massachusetts who had one more vote than the three who voted against them.

When we see cracks in a dam, we take steps to repair those cracks. We do not wait until the dam breaks and we have to build a new one. Well, the only way to repair the current legal situation on marriage is to pass a constitutional amendment.

I wish it was not, but it is.

My colleagues are not addressing the legal concerns. Instead of arguing about the Constitution, some of them have taken cheap shots and contend that we are engaging in discrimination. Come on. We are in the 21st century. I don't know of anybody in this body who engages in discrimination. Certainly I don't.

Does this mean more than three-fourths of the States are bigoted? That is how many enacted the Defense of Marriage Act to preserve traditional marriage. Does this mean the vast majority of the American people are bigoted? Or that Senators John Kerry and John Edwards are? Of course not. What about Rev. Walter Fauntroy, former Member of Congress, the African-American pastor of Washington's New Bethel Baptist Church, and Bishop Wilton Gregory, the African- American president of the United States Conference of Catholic Bishops? The answer to all of these is no. Similarly, I do not think it is proper to conclude that the more than 60 percent of Senator Boxer and FEINSTEIN's own constituents who voted for traditional marriage are bigots either. They are not.

Those making these slanderous accusations are well aware that many of those in favor of an amendment have frequently pursued legislation to protect the rights of gay citizens. Our attempts to protect traditional marriage laws have nothing to do with the private choices of gay and lesbian citizens; they have everything to do with the right of the American people to protect traditional marriage, which, in addition to its private elements, is a public institution with clear public purposes--namely, the rearing of future citizens. Our efforts simply seek to maintain the right of the American people to decide this issue for themselves through their elected representatives, which will be taken away from them if we allow the Supreme Court of Massachusetts to dictate this rule of law to every State in the Union.

My colleagues making these arguments might want to at least look at article V of the Constitution. An amendment only becomes law once three-quarters of the States agree to it. In short, the States are the integral part of the amendment process. I have stopped trying to make sense of some of these so-called arguments of those opposed to protecting traditional marriage, but this one, that an amendment that requires the consent of the States would undercut the rights of the States, is particularly galling.

There is no going back now. This issue will be decided one way or another. Either the American people will amend the Constitution to protect traditional marriage or the courts will ignore the expressed commitments of citizens in every State and amend the Constitution to require same-gender marriage. The choice is ours.

I simply don't understand how the opposition can seriously claim that this issue does not merit our attention. I suggest it is one of the most important issues to ever come before either body of Congress. Without self-government, all of our other rights are for naught. That is exactly what is at stake. We are expanding rights through this amendment. We are further securing the rights of democratic communities to decide this most important of social policies on their own, rather than having them stripped from them by unaccountable and unrepresentative judges.

Let me make this last point absolutely clear: We are not restricting rights with this amendment. We are expanding the rights of democratic communities to decide issues for themselves.

Before I close, I would like to go through a few of these charts because I believe they make the case very well. This first chart says, ``Not one legislature has voted to recognize same-sex unions.'' Think about it. In 1996, not one had voted to recognize same-sex unions, not one. All of the blue stands for the zero. But in 2004, we now have 46 States with same-sex married couples from Massachusetts and some of these other rogue jurisdictions. As you can see, there are very few States--only four--that do not have it: Maine, West Virginia, Louisiana, and Montana. Every other State has same-gender marriages within those States that will have to be recognized under the full faith and credit clause against the wishes of those particular States.

Look at this next chart: ``States that define marriage as a union between a man and a woman.'' The red States or orange States are States that define marriage as the union between a man and a woman. The only ones that do not are Oregon, New Mexico, Wisconsin, New Jersey, Connecticut, Rhode Island, Massachusetts, and New York. They are the only States that have not defined marriage as only between a man and a woman. All other States have done that, including Alaska and Hawaii, the two that are out in the ocean there. That is a very telling chart. We have these people saying: We are taking the rights away from the people to decide these things. No. We are taking the rights away from the courts to tell everybody in America what they should do, and all these States that have enacted traditional marriage laws, all of these States are going to be overruled by four liberal, activist, radical justices on the Massachusetts Supreme Court.

Look at what Kevin Cathcart of Lambda Legal, one of the leading gay rights organizations, said:

We won't stop until we have [same-sex] marriage nationwide.

Justice Scalia was very prescient when he said:

The Lawrence decision leaves on pretty shaky grounds State laws limiting marriage to opposite-sex couples.

Evan Wolfson, director of Freedom to Marry, another gay rights organization, said:

But when Scalia is right, he's right. We stand today on the threshold of winning the freedom to marry. This is a big issue.

Professor Laurence Tribe, highly respected liberal spokesperson for the liberal cause, constitutional law professor at Harvard Law School, a person I personally enjoy listening to, very bright, very fine teacher, he had this to say:

You'd have to be tone deaf not to get the message from Lawrence that anything that invites people to give same-sex couples less than full respect is constitutionally suspect.

Now, one last one here. This last one shows States with pending court cases involving same-sex marriage. The ones that are in the rust color, you will notice, are States with pending court cases involving same-sex marriage. These are the States where already we have pending cases: Washington, Oregon, California, New Mexico, Wisconsin, Indiana, Florida, North Carolina, West Virginia, Pennsylvania, Maryland, Delaware, New Jersey, New York, Vermont, and Massachusetts. Those are States where we already have pending cases forcing this on those States. I suppose that most all the others will, too, but they may not have to go into all the other States because any one of those States could also impose this, as Massachusetts has done as well.

We are talking about a very important issue, and that is that gays should have a right to their own way of living. I would certainly stand up to try and do what is right and fair for gay people in our society. I have. I have done it and taken a lot of criticism for having done so. I have been right to do so. But they should not have a right to redefine traditional marriage through four activist, liberal justices in the State of Massachusetts imposing their will on all of America because of the full faith and credit clause.

Even though 40 States have adopted the Defense of Marriage Act, most constitutional scholars agree that the Defense of Marriage Act will be ruled by these cases unconstitutional,

and thus every State in the Union, against the will of the people, will have to recognize gay marriage, or will have their concepts of traditional marriage, which have been uniform throughout the country just blasted into smithereens--all, again, because of a liberal court in Massachusetts.

I hate to say this, but it is true. Our colleagues on the other side want liberal judges. The reason is because liberal judges can enact legislation from the bench. You will notice the word ``legislation'' should never be part of the judging process. But they can and will enact legislation, as these Massachusetts judges have done, which these liberals could never get through the elected representatives of the people in a million years. They don't want the people to decide this. They want the courts to decide it. That is what they say when they say they believe in States rights--that Massachusetts should determine for all of America how marriage should be defined.

As you can see, we are in a plethora of lawsuits. It is not going to stop until we take the bull by the horns and pass a constitutional amendment. I think most people would acknowledge that this amendment does not have the votes at this point; it doesn't have 67 votes. But this debate is very important. I don't know of a more important debate in our country's history. If we undermine traditional marriage in our society, I think we are going to regret it.

I don't think judges should determine the sociology of our society. I don't think they should be legislating from the bench. I don't think judges should be making these decisions unilaterally, and a 4-to-3 decision was made in this particular case. I think the people ought to make this decision. We know that 40 States have already adopted the Defense of Marriage Act, which is likely to be struck down. I believe the other 10 States will adopt it before it is all over. This was done by four activist judges in Massachusetts versus three others who are also liberals, but they would not go as far as to strike down traditional marriage.

I yield the floor.