The Marriage Amendment - S.J.Res.1
MOTION TO PROCEED
Mr. President, I now move to proceed to Calendar No. 435, S.J. Res. 1, the marriage protection amendment.
I ask unanimous consent the Senate resume consideration of this motion to proceed immediately following any morning business period on Monday, June 5.
The text of the proposed Constitutional Amendment according to S.J.Res.1 is:
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.
The parallel legislation in the House is H.J.Res.39, the text of which is considerably different from the amendment according to the Senate's S.J.Res.1.
SECTION 1. Marriage in the United States shall consist only of a legal union of one man and one woman.
SECTION 2. No court of the United States or of any State shall have jurisdiction to determine whether this Constitution or the constitution of any State requires that the legal incidents of marriage be conferred upon any union other than a legal union between one man and one woman.
SECTION 3. No State shall be required to give effect to any public act, record, or judicial proceeding of any other State concerning a union between persons of the same sex that is treated as a marriage, or as having the legal incidents of marriage, under the laws of such other State.
It's interesting to me that Republican leadership chose the language of S.J.Res.1, rather than the simpler language of S.J.Res.13:
SECTION 1. Marriage in the United States shall consist only of the union of a man and a woman.
SECTION 2. Congress shall have the power to enforce this article by appropriate legislation.
This difference in language was speculated as making as much as a 10 vote difference, when this amendment was taken up by the Senate in 2004. The one-sentence amendment being the one with MORE support. See Marriage amendment loses on procedural vote By Michael Foust of the Baptist Press for a summary report.
S.J.Res.40 was "defeated" by the procedural device of failure to obtain cloture for the purpose of voting on the motion to proceed. In July 2004, the process was:
- Motion to proceed to consideration
- Objection to motion to proceed to consideration
- Cloture motion re: voting on motion to proceed to consideration
- Cloture motion rejected 48-50
- Motion to proceed to consideration was withdrawn
GOP Senators against cloture: Ben Nighthorse Campbell, Chafee, Collins, McCain,
Snowe and Sununu.
DEM Senators for cloture: Byrd, Nelson of Nebraska, and Zell Miller.
I suggest that one save the trouble of listening to the Senate for a few days in 2006 by reading the debate from 2004. I think the debate this year will be substantively identical to the debate two years ago.
Links to 2004 debate
Mostly irrelevant, but I find the "groups" reference amusing, H.J.Res.93 of the 107th Congress had this language:
Section 1. Marriage in the United States shall consist only of the union of a man and a woman. Neither this Constitution or the constitution of any State, nor state or federal law, shall be construed to require that marital status or the legal incidents thereof be conferred upon unmarried couples or groups.
Senator Leahy's statement of objection on May 18, 2006 notes the grounds of federalism and discrimination as his principled rationale for objecting to the amendment; and he also lays in that taking the matter up now is a matter of political calculus designed to mollify social conservatives.
I think the Senate will again refuse to take up the measure, although I expect more than 48 votes in favor of cloture. But even if cloture is invoked, the resolution will fail to obtain the 67 votes necessary to pass.
Speaking personally, this social conservative is not keen on the government urge to weigh in on all aspects of social decay - especially not the federal government. Being opposed to something doesn't mean I think there should be a law against it.
Various government entities are being solicited to legitimize gay marriage and other forms of social/family construct, and merely withholding the label "marriage" from families with homosexual and polygamous heads is naught but a parlor trick, and IMO, a waste of time. The government should not be seen as a fount of moral authority, let alone as -the- fount.
My view hasn't changed since I made the following contributions to the FreeRepublic chatboard ...
I full understand that there are financial and tax matters wrapped up in how we structure our society. But the observation I am making is that society is permitting certain rights to same sex couples (e.g., adoption) that will have profound consequences. And somehow, calling the[m] "civil unions" instead of "marriage" is sufficient to prevent the change. It'd be funny, if it wasn't so sad.
Horse is out of the barn, now. Even the GOP is for civil unions. Homosexual conduct meets with social approval. Homosexual couples can adopt and raise children. As time goes on, the substantive differences between civil union and marriage will be reduced. Sure, we can protect the word "marriage" via a Constitutional amendment. But what good is the word, if the institution is undermined?
I'm not against a FMA, I just don't believe it fixes any of the problems. See my other comments for the social ramifications of normalizing homosexual families, regardless of whether it is called "marriage" or "civil union." Also, judges have ways to circumvent what at a glance appears to be clear constitutional language. No sweat keeping the mitts of the word "marriage," we'll just decree that all couples, homosexual included, are entitled to the same benefits as "married" mixed-sex couples.
If activist judges create the problem, against the "will of the people," then the people, acting through their legislatures, have the power to remove the judges. I submit that the impeachment remedy is less intrusive and disruptive than the remedy of constitutional amendment.
But the word "impeach" appears NOWHERE, not once, in the Senate debate of July 2004, while "a few judges" are fingered as the agent responsible for advancing the legality of gay marriage. The following quotes are from the debate on July 14, 2004. More quotes can be found in debate from earlier days.
Mr. CORNYN. "I also think it has been positive that we have been able to direct the American people's attention to the erosion of our most fundamental institutions by judges who seek to enforce their personal political agendas under the guise of interpreting the Constitution."
"It is not good for them, it is not good for us, and we should not, without letting the American people have a voice in the process, merely sit back while judges radically redefine our most basic societal institution."
Mr. ALLARD. "Unfortunately some judges are increasingly willing to disregard the text of the laws--as well as the political will of the people--in judicial efforts to remake the institution of marriage to suit their own particular political views. This is not the proper process to be followed in a democratic republic. It is the people and their elected representatives who should determine the meaning and structure to marriage through the process of political debate and voting."
Mr. SESSIONS. "Some suggest there is not a real threat to marriage and the courts will not strike down the traditional definition of marriage. I do not think that is something we can say. As a matter of fact, marriage, as we have traditionally known it, is without any doubt in great jeopardy by the rulings of the courts in America. It has already occurred in Massachusetts."
Mr. SANTORUM. "What has changed? The courts have changed. The courts have decided it is now their role to take over the responsibility of passing laws. What has changed? What has changed is that they now create rights and change the Constitution without having to go through this rather cumbersome process known as article V. We actually have to amend it, have to get two-thirds votes, have to get three-quarters of the States. That is what has changed."
Mr. LEAHY. "The President addressed the issue of gay marriage in his State of the Union address in January. He said, ``If judges insist on forcing their arbitrary will upon the people, the only alternative left to the people would be the constitutional process.'' Yet, on February 24--barely a month after the State of the Union address--and without any additional court anywhere in the country ruling on gay marriage, the President flip-flopped and endorsed putting a ban on gay marriage in the Constitution. I can only assume that something turned up in the White House's polling to prompt such a dramatic about-face. Or perhaps Karl Rove's phone simply would not stop ringing with calls from the hard-right groups that compose the core of the President's support.
"In any event, the day after the President endorsed the concept of a constitutional amendment, I wrote him and asked what specific language he wanted us to add to the Constitution. After all, we have only amended the Constitution 17 times since the Bill of Rights. If the President was calling on Congress to amend it for an 18th time, I thought the least he could do is make clear what language he seeks. I have waited in vain for a response.
"I am not surprised by the President's conduct in this matter. He has proven himself willing over the last 3 1/2 years to take whatever measures he finds politically expedient. He has also shown that he is more than willing to play political games with the Constitution, as we see with today's debate and we will see again in the upcoming debate on a constitutional amendment to ban flag desecration an issue that Vice President Cheney has been campaigning on recently. The President, the Vice President, and the rest of the administration have withheld information from Congress and the public whenever it suits them. And facts have proven to be awfully malleable things when they have stood in the way of the President's political priorities. For this administration, it is all politics all the time regardless of the truth or the consequences. Let me provide three of the many possible examples.
"When the facts got in the way of the President's prewar statements about Iraq, and Joseph Wilson pointed out the flaws in the President's 2003 State of the Union address concerning Iraq's alleged efforts to obtain uranium in Niger, someone in the Administration apparently told the press that Wilson's wife was an undercover agent at the CIA. The President promised that the perpetrator would be discovered and punished. But if he has made any efforts to discover the leaker's identity, we are unaware of ..."
Mr. CRAIG. "The time has come for this body to act. Marriage is an institution cultures have endorsed and promoted for thousands of years. It is important for us to stand up now and protect traditional marriage which is under attack by a few unelected judges and litigious activists."
Mr. McCONNELL. "A bare majority of judges in one State, however, recently ignored the sincere and well-formed beliefs of their fellow citizens on this issue and have redefined the ages-old meaning of marriage for their State. In the process, these judges gave short shrift to the State's rational interest in wanting to encourage traditional marriage to ensure the optimum environment for children, terming the people's belief in traditional marriage as ``rooted in persistent prejudices.''"
Mr. HATCH. "First, the proponents of this amendment are not seeking a policy change. We are simply trying to preserve more than a 5,000-year-old institution, the most fundamental in all of our society, that a few unelected, activist judges are trying to radically change."
Mr. SMITH. "Make no mistake, our Constitution is being amended. The question is, by whom? Should it be done by a few liberal elites? Should it be done by four judges in Massachusetts?"
Mr. FRIST. "And the fundamental issue is, Do we let four activist judges from Massachusetts define marriage, the bedrock of our society, or do we let the American people?"
Same stuff, different day. Listen for the "impeach the judges" word from the Senate, but listen in vain. This is the day and age of sound bite politics, not "git 'r done" politics.