Senator John Warner (R - VA)

Statement on the Federal Marriage Amendment
July 13, 2004

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Mr. WARNER. I thank my distinguished colleague from Colorado. I commend him, as well as the Senators from Texas, Pennsylvania, and Alabama, and so many who have worked on this important constitutional amendment, S.J. Res. 40.

I have listened to the debate the past several days. I have actually gone back, together with my staff, and reviewed the Congressional Record of Friday and Monday. I feel obligated to indicate to the Senate my own views with regard to this resolution and what I intend to do.

First, I intend to vote in support of cloture on the motion to proceed to the Federal Marriage Amendment, S.J. Res. 40. I feel very strongly that the Senate should be accorded the opportunity to debate in full and to amend, if it is necessary, and I think it is necessary, S.J. Res. 40.

For that purpose, I hope cloture prevails and that we can, as a body, continue to address this very important legislation. It is of utmost seriousness.

My greatest concern throughout this process is the heavy weight that rests on all of us when we go to amend that document which has enabled this Republic--each morning we open the Senate by our Pledge of Allegiance to this Republic, which I think historians will agree is the longest continuous surviving republic in the history of the world. It is a remarkable document, the wisdom that is incorporated in our Constitution, the Declaration of Independence, and Bill of Rights.

Therefore, I think it is incumbent upon the Congress to proceed with the utmost care when amending our Constitution. I think that should be brought out in the ensuing debate if cloture prevails, and I hope it will, and I lend my support.

The proposed constitutional amendment reads as follows:

Marriage in the United States shall consist only of the union of a man and a woman. .....

I unequivocally support that part of this resolution. The second part, which reads:

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 woman.

Therein rests a concern that I have with S.J. Res. 40, and one I will work with others to address in the event hopefully that this Senate will continue its debate and the amendment process. I unequivocally support the first sentence, as I said. The time-honored tradition of marriage between a man and a woman ought to be protected in light of the attacks by certain opportunists in the judiciary on this time-honored part of our culture and heritage, a culture and heritage that our Nation, a young nation, shares with nations far older than ours.

Again, the second sentence gives me this pause, despite the statements by many of my colleagues to indicate what they believe the intent is. I do not think it speaks to the clarity that the public is entitled to and wants, and this could lead to a great deal of confusion among the American public, and I do not want to create that confusion. It could lead to considerable litigation.

Perhaps of the greatest concern on my part, it could lead to some measure of hindrance of the ability of the several States, all 50 of them if necessary, to work their will through their legislatures on the very important issues that remain; namely, whether to recognize or not to recognize those other forms of relationships, particularly the domestic partnership relationships. For these reasons, I intend to align myself post-cloture with those Senators who seek to modify the resolution to retain only, and I repeat to retain only, the first sentence:

Marriage in the United States shall consist only of the union of a man and a woman.

I see in the Chamber the distinguished Senator from Utah. I wonder if I might pose a question. As I look at this language which gives me pause and I have spoken to, the second sentence, ``Neither this Constitution, nor the constitution of any State, shall be construed to require,'' suppose a State wishes to enact those laws they deem necessary on behalf of the people of that State, either to recognize or not to recognize the domestic partnership. Suppose they wish to put that in as a part of their constitution subject to the passage of this amendment. How would this amendment then be construed? Would it overrule a state's subsequent amendment to its own constitution?

Mr. HATCH. If this amendment was passed as the Senator reads that language, it does not prohibit the States from having civil unions or civil accommodations.

Mr. WARNER. Suppose they wish to do it not by statute but actually by an amendment to their constitution? The Senator and I understand that a constitutional amendment has a greater longevity than a statute because what the legislature does via statute one day they can undo the next day.

Mr. HATCH. So long as the action of the State, either legislatively or constitutionally, does not change the definition of a marriage as only between a man and a woman,

the State would have the right to do whatever it wants to in that regard. This just merely makes it clear that nothing in the amendment requires the States to--

Mr. WARNER. I understand very clearly the intent of this in the minds of many. The State legislatures can take such steps. I believe there is a measure of confusion that causes me to pause. But it reads that ``neither the Constitution nor the constitution of any State,'' and what the Senator says is they wish to but legislation not in the form of State law, but that constitutional provision would not then be overruled by this.

Mr. HATCH. The States would have great flexibility under this amendment. But they could not change the definition of the traditional terms. The Senator is correct in his interpretation.

Mr. WARNER. I yield the floor.