Senator Don Nickles (R - OK)

Statement on the Federal Marriage Amendment
July 13, 2004

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Mr. NICKLES. I thank my colleague from Colorado for yielding. I compliment Senator Allard for his work on this amendment and on this issue. It is a very important issue.

I also compliment Senator Hatch for the very fine statement he made earlier, as well as Senators SANTORUM, SESSIONS, and CORNYN. Several of our colleagues have made very eloquent remarks about this amendment and about the fact that marriage is under attack. I want to come at it from a little different perspective.

I was the principal sponsor of the Defense of Marriage Act, which passed and was signed into law by President Clinton in 1996. I heard my very good friend from Minnesota, Senator Dayton, mention that this is about politics, and I wanted to inform him as the sponsor of DOMA, the Defense of Marriage Act, it was not about politics in 1996, it was because in 1996 the Hawaiian Supreme Court was getting ready to legalize same-sex marriage, and under the general understanding of full faith and credit, if they recognized it, there would be a lot of same-sex couples running to Hawaii to be married and they would return to other States and those States would be required to recognize it.

We thought that was a serious mistake. We did not want that mixed court decision in Hawaii to become the law of the land. So we passed the Defense of Marriage Act. It passed by a vote of 85 to 14.

I notice several of the people who are arguing against a constitutional amendment are arguing for States rights. Several of the people who have argued against this amendment also debated and voted against the Defense of Marriage Act, which was basically a States rights approach to the solution.

Now, let us frame this as an issue. Marriage is under attack. It is under attack in several respects. It is under attack by a liberal court in Massachusetts which wants to redefine marriage, including same-sex couples. They were not elected. It is under attack by mayors in some cities: the mayor of San Francisco, and the mayor of New Paltz, NY.

They wanted to legalize or grant licenses to same-sex couples. It happened to be against the law in the State of California. It is very interesting that a newly elected mayor would decide to defy State law, actually break State law, but he was doing it and gained great notoriety. He was on TV most every day. Then a mayor in New Paltz, NY, wanted to do the same thing. I am not sure what the State law in New York is. But marriage is under attack as defined by this Congress. The Defense of Marriage Act says marriage is between a man and a woman, and yet we had either an unelected court or mayors saying, no, they know better.

So if it is under attack, how is it protected? Is it protected better by a statute or by a constitutional amendment? That is a legitimate debate, and I respect people who say we have the Defense of Marriage Act, but many

of the people who are making that claim voted against the Defense of Marriage Act, so I question whether they really believe in States rights or they are using it at this particular point. But it is under attack.

What has happened differently between now and when the Defense of Marriage Act passed in 1996, one decision was the Lawrence decision. Every once in a while I will sit in on a Supreme Court debate. I sat in just a month ago on the question on the Pledge of Allegiance, whether we could actually have in the Pledge of Allegiance ``one Nation under God.'' In that case, the Ninth Circuit Court, which makes a lot of very absurd rulings, said we should not have ``one nation under God.'' Thankfully, the Supreme Court rejected that argument. I enjoyed listening to that debate.

I wish I had attended the Lawrence v. Texas debate because I am absolutely astounded at their conclusion. Senator Santorum deserves great credit because he took a lot of flak, but he denounced that decision. He denounced it strongly, and he was right. I did not pay enough attention to the Lawrence decision, nor to the Texas statute, which probably should have been overturned or should have been repealed by the Texas legislature. Possibly that is a debate for another day. They went a lot further than just dealing with the Texas statute.

In the Lawrence case, the Supreme Court found:

..... a State's governing majority has traditionally viewed a particular practice as immoral is not sufficient reason for upholding a law prohibiting the practice .....

Sorry about that, States, sorry if you had morality as part of the reason you are legislating, but the Supreme Court thinks that may not be enough.

That is a very troubling case. I have heard a lot of constitutional scholars and others say because of the Lawrence case the Defense of Marriage Act would probably be determined unconstitutional. I hope they are wrong.

The Defense of Marriage Act passed with 85 votes. I hope the Supreme Court will pay attention to the fact that it passed with 85 votes. That was not 51 to 49. So if they are going to overturn the Congress--incidentally, it passed in the House by an overwhelming margin, even greater than that, I believe. So I hope it will not be determined unconstitutional. But the Lawrence case does mean marriage is under attack.

When there is a mayor of San Francisco who decides in spite of State law that he is going to start granting marriage licenses or a mayor in New York or by a 4-to-3 decision in the State of Massachusetts--all of those things have happened since the Defense of Marriage Act passed. So it really boils down to which body, which element of our democracy is going to be making this decision? If we are going to redefine marriage and say that it is legal between same-sex couples, should that not be decided by State legislatures and/or elected Federal officials? It certainly should not be decided by an unelected 4-to-3 decision in one liberal court in the country. So to stop that 4-to-3 decision, particularly given the fact that there is a Supreme Court decision which seems to give credibility to that decision, maybe a constitutional amendment is in order. My guess is it probably will not pass until they do overturn the Defense of Marriage Act, and then I believe there really will be a revolt around the country. Then it might get the necessary

two-thirds vote in both Houses of Congress and be ratified by three-fourths of the States.

Our forefathers showed great wisdom in making it very difficult to amend the Constitution. It has only been amended 27 times--only 17 if we take out the Bill of Rights--in the last 228 years. That is pretty remarkable. They made it very difficult to amend the Constitution.

We are dealing with something very fundamental when we are talking about how marriage is defined. Marriage is a very esteemed union between a man and a woman, a contract with Government recognition, with benefits, a sacred union, a sacrament in some religions, a very special relationship, not to be changed or altered, frankly, by a 4-to-3 decision, by an unelected court, trying to redefine something so important. It should be decided by elected officials.

So we have a process. We have the statute process, which we have done, and we have a constitutional process which may be necessary in light of the Lawrence decision and in light of the State of Massachusetts, in light of the mayor of San Francisco, in light of mayors in other places around the country who wish to make such a fundamental change and do it without authority, without election, without backing.

In the State of Hawaii, when the State supreme court there tried to redefine marriage, there was an uproar and basically they passed a constitutional amendment that allowed the legislature to define marriage. The legislature defined marriage as a union between a man and a woman. The legislature stopped it.

Hopefully maybe legislative action would be enough, but my concern is that in spite of the fact that 38 States have passed identical legislation to DOMA, in spite of the fact that 4 additional States have passed something very close to it, 42 out of 50 States passing legislation basically defining marriage as between a man and a woman, is that there still might be a 4-to-3 decision that becomes the law of the land because of what I believe is an absurd decision based on the Lawrence decision. I hope that is incorrect, but I do want to fight to defend marriage as between a man and a woman. That can be done constitutionally. It can be done statutorily. I do think that people, through their elected officials, should be making this decision instead of an unelected 4-to-3 decision in a court. This is vitally important.

So, again, I compliment my colleague, Senator Allard, for his leadership on this issue. I hope people will take this very seriously. The benefits of marriage are great. Undermining marriage has great negative consequences for our country, and I hope our colleagues will weigh those decisions very closely and at least support the motion to proceed. It is a legitimate debate as to whether the amendment should be one sentence or should it be two sentences, should it be rewritten or tweaked one way or another. We will not know unless we pass the motion to proceed. So I urge our colleagues to support the motion to proceed in tomorrow's vote.