Senator Patrick Leahy (D - VT)

Statement on the Federal Marriage Amendment
July 13, 2004

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Mr. LEAHY. Mr. President, I oppose amending our Constitution with the Federal Marriage Amendment (FMA) because it interferes in a fundamental State matter, and, worse yet, it does so for the purpose of disfavoring a group of Americans. We have never amended our Constitution for that purpose, and we should not start now. The timing of this debate strongly supports my point that the FMA's supporters are concerned not with preserving the sanctity of marriage, but with preserving Republican politicians.

I am disappointed that we are debating a divisive and mean-spirited amendment that violates the traditions of Federalism and local control that the Republican party claims to cherish. We should be upholding the commitment to tolerance that underlies our Constitution, not betraying it with a premature debate that we all know will yield nothing but division in this body and among the American people. I urge all Senators to honor our oath as Senators to ``support and defend the Constitution'' and not sacrifice it to this short-term partisan exercise.

This debate risks great harm by casting States and gay Americans into second-class status and also harms the Senate. The Republican Senate leadership has shown contempt for the constitutional amendment process by bringing this proposed constitutional amendment directly to the Senate without the approval--or even the consideration--of the Judiciary Committee or its Constitution Subcommittee.

The Senate and the Judiciary Committee have followed a consistent practice for the consideration of constitutional amendments in the past. Before a constitutional amendment receives floor consideration it is debated and voted on by both the Subcommittee on the Constitution and the Judiciary Committee as a whole. This is the process that the Senate is currently following for the amendment to ban flag desecration, an amendment that has been considered by the Senate on numerous occasions, and that we followed in conjunction with the crime victims rights constitutional amendment. By contrast, the Federal Marriage Amendment, which is being considered for the first time, was not debated or voted on in either the subcommittee or the full Committee, yet it is before us on the floor today.

Past attempts to skirt Committee consideration of constitutional amendments, in the absence of an agreement between the parties, have drawn sharp condemnation. Twenty-five years ago, an amendment calling for direct election of the President and Vice-President was brought to the floor without Judiciary Committee approval. Senator Hatch, the then-ranking Republican member on the Constitution Subcommittee, said: ``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.'' The late Senator Thurmond said that ``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.'' In 1979, Senator Hatch said it was ``unconscionable to bring up legislation under these circumstances.'' Apparently what was ``unconscionable'' in 1979 is applauded in 2004 so long as it is being done for partisan Republican purposes.

I joined with all of my Democratic colleagues on the Judiciary Committee in writing last month to the Chairman to request that this amendment go through the normal channels. That request was ignored by the Chairman and apparently rejected by the Senate Republican leadership as it chooses for its own benefit to change yet another longstanding practice of the United States Senate.

The procedural treatment the Republican leadership is giving this proposed amendment to the Constitution of the United States is perhaps more appropriate for a resolution commemorating an organization's anniversary or a celebratory day, which are sometimes discharged from the Judiciary Committee without debate and agreed to by the full Senate. When we are dealing with a resolution designating something as universally accepted as ``National Girl Scout Week,'' it does not offend me to skip Committee consideration. But short cuts are not fitting when we are talking about amending our fundamental national charter.

Perhaps cutting corners like this and its maneuvering reveals how the Republican leadership really sees this amendment. Perhaps this exercise is, after all, not intended as a serious effort to amend the Constitution--something deserving deliberate consideration and careful refinement during the Committee process. It seems that this forced exercise is intended instead as the legislative equivalent of a political bumper sticker, suddenly appearing on the Senate floor late in an election year.

I assume that our longstanding practice was disregarded because the majority did not want to risk seeing the FMA defeated in committee. Or perhaps their decision to press this matter into debate, in spite of last week's terrorism warning, the unresolved intelligence failures and torture scandal and the lack of progress on a budget and Federal appropriations matters, was made hastily to fit the political calendar. Forcing a debate at this time shows they have no interest in passing an amendment--they simply want to go through the motions to please their hard-right base and try to inflict political damage of those of us who stand up for the Constitution. The New York Times reported yesterday how much pressure Republicans have been under from their extreme right wing to turn to this matter. This is apparently especially true now that the Republican Party has decided to try to put a pretty face on its harmful policies at its upcoming convention by featuring its few moderates. Those moderates do not set the policy for the national Republican Party and oppose this amendment. However the national Republican Party tries to dress itself up at its convention, the hard truth is that they are choosing to foster division by pressing this matter. If the Senate Republican leadership were interested in amending the Constitution, they would not bring this amendment to the floor now and face certain defeat.

Committee consideration of an amendment is not merely a box to check in a procedural flowchart. Committee consideration of any legislation, especially constitutional amendments, affords an opportunity to address problems that are not easily remedied on the Senate floor. Committee consideration can also ensure that we agree on what an amendment does, even if we disagree on whether what it does is desirable. I certainly do not believe that we are at that point as we begin this premature debate. In that light, I would like to discuss some of the open questions raised by this amendment.

I would like to place in the RECORD a story from the February 14 Washington Post about the formation of the FMA. The basic theme of the report was that even the drafters of the FMA disagree about what it means. Matt Daniels, the head of the Alliance for Marriage, a group promoting the FMA, was honest enough to tell the Post that the drafters of the amendment did not worry too much about the wording, saying, ``I don't think we expected there would be this much attention paid to it.'' Although the language of the amendment before us has changed slightly from the original version, it is essentially the same as the sloppy patchwork version introduced last year. I think that Mr. Daniels' attitude speaks volumes about the respect the supporters of this amendment have for the Constitution.

This attitude is apparently shared by President Bush, who has made clear his desire to use this issue for political advantage. Although the President has asked Congress to amend the Constitution to ban gay marriage, he has refused repeated calls to state specifically what language he believes Congress should adopt. Like the Senate leadership, the President appears happy to seek political profit by demeaning both the Constitution and gay and lesbian Americans.

I would contrast the casual approach of the President toward the words of our Constitution with the approach of Senator Byrd--the most senior member of this body and a fierce defender of the Constitution--during the 1997 debate over the Balanced Budget Amendment. Senator Byrd said:

I would like to remind my colleagues that law and legislating is about the examination of details. We don't legislate one-liners, or campaign slogans. Here, in this body and in the other body, we put the force of the law behind details that impact mightily upon the daily lives of our people. That is a solemn responsibility. And it is more important than political popularity, or winning the next election or marching lockstep to the orders of one political party, or another.

Especially in the case of amending the Constitution, that responsibility weighs more heavily. For in that instance we are contemplating changes in our basic, fundamental organic law--changes that, when once implanted in that revered document, can only be removed at great difficulty, and which will impact, quite possibly, upon generations of Americans who, yet unborn, must trust us to guard their birthright as Americans.''

Senator Byrd was right--the words of a Constitutional amendment matter deeply. This is the third version of this amendment that has been introduced in the Senate, and it may not be the last. Senator Hatch has publicly toyed for months with introducing a different version of the amendment and Senator Smith is reported to be working on still another version.

The version of the Federal Marriage Amendment before us today reads as follows: ``Marriage in the United States shall consist only of the union of a man and a woman. 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 the union of a man and a woman.''

First, the amendment appears to dictate to voters what language they can put in their own State Constitutions. The natural reading of the FMA suggests that voters in a State could not place in their State Constitutions any benefits for same-sex couples that could be defined as ``legal incidents'' of marriage. This limitation is particularly noteworthy in light of the current proceedings in Massachusetts. In response to the Supreme Judicial Court's decision in Goodridge, the Massachusetts Legislature has approved an amendment to the Massachusetts Constitution that would limit marriage to heterosexual unions but provide many of the benefits of marriage to same-sex couples through civil unions. This amendment is supported by Governor Mitt Romney, who testified before the Judiciary Committee last month.

Yet it appears that the Massachusetts amendment might be rendered unenforceable if the FMA were adopted, for no court would be permitted to ``construe'' the Massachusetts Constitution to provide for civil unions, which surely provide many of the ``legal incidents'' of marriage. Without judicial recognition of civil unions, the rights created for gay couples under the Massachusetts Constitution would not be worth the paper they are written on, even if they were approved by a majority of the State's voters.

Governor Romney told the Judiciary Committee that he somehow supports both the Federal and Massachusetts amendment, and did not believe they conflicted. I do not see how he can hold that position. Neither did former Representative Bob Barr, a conservative Republican from Georgia, who testified before the Committee at the same hearing. Congressman Barr said:

Governor Romney essentially is here to ask the Congress to step in and have the federal government invalidate the actions of the highest state court in his state, and also to strangle before its birth the proposed state constitutional amendment that his own state legislature passed this year. That State constitutional amendment, if passed next session and ratified by his state's voters, would deny marriage rights to same-sex couples, but also provide civil unions. The Federal Marriage Amendment, however, would invalidate any civil union provided by the Massachusetts state constitution, and of course would also invalidate all same-sex marriages in the state.''

Second, it is unclear from the language of the FMA whether its prohibition on ``construing'' a Constitution is limited to the judicial branch. From the plain text of the amendment, executive branch officials--from a Governor to county clerks--would similarly be prohibited from construing even a duly-passed State constitutional amendment to provide for the ``legal incidents'' of marriage, whatever those should be. This is a potentially breathtaking imposition on our States and their officials.

Third, the term ``legal incidents'' is itself extraordinarily vague. Since the amendment did not go through the proper channels, we have no Committee report language to clarify this or any of the other vague elements of this amendment. We do have the thoughts of Marilyn Musgrave, the House sponsor of the FMA, from a memo she produced to explain the meaning of the amendment. In her view, ``legal incidents'' include, among many other things, the right to bring actions for the wrongful death of a partner, rights and duties under adoption law, and even the right to hospital visitation. Her sweeping view would thus prevent any court anywhere from finding that any State constitutional provision might protect a person's right to visit their same-sex partner in a hospital. And in the absence of a Committee report on the amendment, courts would likely have little choice but to give substantial weight to her view.

Fourth, although some supporters of the proposed amendment state categorically that the amendment leaves State legislatures free to pass civil union laws, that claim is also open to serious doubt. Surely Senator Allard and his allies cannot mean to put the Senate through this ordeal only to put the word ``marriage'' off limits to same-sex couples. Should a State pass a law that provides for marriage in all but name, would supporters of this amendment not mount legal challenges based on the amendment's first sentence? Indeed, two of the amendment's intellectual godfathers--Professors Robert George of Princeton and Gerald Bradley of Notre Dame Law School--have said they believe it would forbid civil unions that were sufficiently similar to marriage.

Fifth, the application of the amendment is not even limited to State actors, but would also apparently bind the behavior of private organizations, including private religious organizations. The first sentence of the amendment purports to define marriage for all time and for all purposes. In other words, no one could marry same-sex couples, regardless of whether that person was acting on behalf of the State. This is one of the reasons why so many religious organizations oppose this amendment, including the Episcopal Church, USA, the Alliance of Baptists, and the American Jewish Committee.

The only amendment that binds private parties is the Thirteenth, which forbids slavery anywhere in the United States. Given the stain of slavery on our nation, and its inherent evil, the Thirteenth Amendment's sweeping ban is obviously appropriate. To take that extraordinary step here and to impose a definition upon all churches and faiths to tell them what they must do is overreaching and inappropriate. Marriage is first and foremost a religious concept and institution. Respecting religion, the Federal Government ought to stay out of defining what a religious definition of marriage can be.

One thing we can say with certainty about this amendment is that if it is passed, it will present a field day for litigation.

This amendment is all the more mean-spirited because it is unnecessary. Unless we are planning to use the constitutional process to overturn a single State's marriage policy--a purpose that I doubt has the support of even one-third of this body--the only possible rationale for the amendment is to authorize States not to recognize same-sex marriages performed in other States. This rationale is already accomplished, however, by both the inherent right of States to establish their own policies regarding marriage and by the Defense of Marriage Act, which Congress passed and President Clinton signed in 1996.

Many proponents of this amendment have stated as fact that the Constitution's Full Faith and Credit Clause requires States to give the force of law to marriage licenses issued by other States. This is simply not the case. Lea Brilmayer, a professor at Yale Law School and an expert on the Full Faith and Credit clause, told the Judiciary Committee in March that the Clause was designed and has been interpreted to ensure that judgments entered by one State's courts are respected in other States. Marriage licenses are not judgments, she said, and they have ``never received the automatic effect given to judicial decisions.'' Rather, ``courts have not hesitated to apply local public policy to refuse to recognize marriages entered into in other states.''

Moreover, Professor Brilmayer testified that the Full Faith and Credit Clause ``has never been understood to require recognition of marriages entered into in other states that are contrary to local `public policy.' The `public policy' doctrine, which is well recognized in conflict of laws, frees a state from having to recognize decisions by other States that offend deeply held local values.''

Under this long-established ``public policy'' doctrine, the nearly 40 States that have elected to pass their own ``Defense of Marriage'' acts would be expected not to have to recognize a same-sex marriage from Massachusetts. Of course, the small minority of States that have not passed such laws are free to pass them at any time. If they do not do so, just maybe preventing the recognition of other States' gay marriages is not a burning issue for their citizens.

As the Judiciary Committee has learned, the Constitution places no requirement on Pennsylvania to recognize a gay marriage from Massachusetts. In the unlikely event that Federal courts take a different view and alter the historic understanding of the Full Faith and Credit Clause, however, the Defense of Marriage Act provides an additional layer of security for States that do not wish to recognize same-sex marriage.

The federal law says that no State shall be required to give effect to any public act, record, or judicial proceeding of another state respecting a relationship between persons of the same sex that is treated as a marriage. It is the law of the land, and no court has found it to be unconstitutional. It seems to me that DOMA is presumptively constitutional, especially since the Full Faith and Credit Clause itself provides Congress with the power to direct the Clause's interpretation:

Full faith and credit shall be given in each state to the public acts, records, and judicial proceedings of every other state. And the Congress may by general laws prescribe the manner in which such acts, records, and proceedings shall be proved, and the effect thereof.

Some of my colleagues have suggested that we need to amend the Constitution now because the Supreme Court may either (a) invalidate DOMA and find that the Full Faith and Credit Clause requires 50-State recognition of Massachusetts gay marriages; or (b) go beyond even that analysis by finding a right to same-sex marriage under the Equal Protection Clause of the Fourteenth Amendment.

My initial reaction to these predictions about the judiciary is that they do not square with the Rehnquist Court I have been watching for the last 17 years. It is true that the Supreme Court found last year, in Lawrence v. Texas, that Texas and a handful of other States could no longer make it a crime for homosexual couples to engage in sexual acts in the privacy of their own home. And it is true that many of those who support the Federal Marriage Amendment decried this imposition on Texas's right to punish its gay and lesbian citizens. It is a far leap, however, from saying that gay couples should not be thrown in jail and saying that they have a Constitutional right to marry. The comparisons that some are making between the Lawrence and Goodridge decisions are vastly overblown.

My second reaction, however, is the one that should move the Senate to reject this amendment. Perhaps my colleagues' fearful predictions about the activism of the Rehnquist court will come true. More likely, they will not. But Congress's job is not to imagine outcomes that appellate courts or even the Supreme Court might conceivably reach and preemptively amend the Constitution to prevent them. We have had enough difficulties during this Congress stemming from a preemptive war--we need not add a new preemptive theory to our arsenal. When it comes to the Constitution, it is simply wrong for the Senate to ``shoot first and ask questions later.'' Rather, it is our duty to show restraint.

If the Court should reverse 200-plus years of understanding of the Full Faith and Credit Clause, or find that the Equal Protection Clause prohibits limiting marriage to heterosexual couples, a future Congress can react to that decision however it sees fit. That Congress will act in a way consistent with the views and circumstances of their time.

I believe preemptive action on this matter would set a precedent that both Republicans and Democrats in this body would come to regret. Congressman Barr, the author of the Defense of Marriage Act, illuminated this point when he testified last month. Congressman Barr said:

In treating the Constitution as an appropriate place to impose publicly contested social policies, [the FMA] would cheapen the sacrosanct nature of that document, opening the door to future meddling by liberals and conservatives....... The Founders created the Constitution with such a daunting amendatory process precisely because it is only supposed to be changed by overwhelming acclamation. It is so difficult to revise specifically in order to guard against the fickle winds of public opinion blowing counter to basic individual rights like speech or religion.

Part of Congressman Barr's testimony should be of particular note to my conservative colleagues. He said, ``We know that the future is uncertain, and our fortunes unclear. I would like to think people will think like me for a long time to come, but if they do not, I fear the consequences of the FMA precedent. Could liberal activists use the FMA argument to modify the Second Amendment? Or force income redistribution? Or ban tax cuts?'' This should be food for thought for all those--from the right or from the left--who would use the Constitution as a playground for their policy preferences.

This is a sad day for the Senate. We all take an oath to uphold the Constitution of the United States. But when the Republican majority brings a constitutional amendment to the floor in defiance of our normal procedures, and with full knowledge that it will not pass, it demonstrates a fundamental disrespect for our Constitution and for this institution, the United States Senate.

I close by echoing the words of Senator Byrd from the debate on the Balanced Budget Amendment: ``What is really wanted by some in this body is not the amendment itself, but an issue with which to whip its opponents. This is simple politics, my colleagues. And it is politics at its most unappealing and destructive level.''

I will have more to say about the Federal Marriage Amendment as this debate proceeds.