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Federal Marriage Amendment—Motion To Proceed—Resumed

Sen. Harry Reid

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Mr. President, I have spoken to the manager of the bill for the majority and I want to say a few brief words now and then I will yield 30 minutes to the Senator from Wisconsin. Following that, Republicans will speak for whatever time they desire and the Democrats will then follow with remarks by Senator Durbin for up to 30 minutes.

I simply ask unanimous consent that following my brief remarks, Senator Feingold be recognized for up to 30 minutes; following his remarks the time revert to whatever the majority feels appropriate; following their remarks, that Senator Durbin will be recognized for up to 30 minutes; then trying to balance out this time, following the reversion back to Republicans, Senator Lautenberg will be recognized for up to 15 minutes.

Is there objection? Without objection, it is so ordered.

Sen. Harry Reid

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Mr. President, the Reno Gazette-Journal, a newspaper that has been in existence for many years, a Gannett newspaper in Reno, NV, which is certainly not a bed of liberalism, published a very short editorial today. It says:

The plan to redefine marriage in a constitutional amendment could not be a better election year wedge. The fact that Lynne Cheney, champion of conservative causes, parted company with her husband, Vice President Dick Cheney, on same-sex marriage is illustrative of just how divisive it's become. Typically, vice presidents support their presidents and political wives back their husbands, regardless of personal feelings. This time, the human aspect of the debate was too much for a political wife to overcome. As the mother of a lesbian, Lynne Cheney, of necessity, would be finely attuned to all the arguments. And no one should expect a parent to disregard an offspring for a political agenda. Anyway, it is debatable that an amendment would help a traditional conception of marriage. And, some Senators indicate they are less than willing to try. The administration is wading into deep waters, fracturing families, and merging the church and the state. That's not the way the system is supposed to work. It would be best for government to leave this issue alone.

I am not an avid reader of the Washington Times. In fact, I didn't read it today. But it was brought to my attention and I did read the Washington Times:

GOP split on marriage proposals. Senate Republican leaders, who had been seeking a clear vote on a constitutional amendment on same-sex ``marriage,'' yesterday found themselves outmaneuvered by Democrats and divided over which of two proposals to pursue. President Bush and Senate Republican leaders support the Federal Marriage Amendment, which defines marriage as the union of a man and a woman and restricts the court's ability to rule on the issue. But some Republicans want to vote on an alternative, simpler version--leaving Republican leaders scrambling. . . .

Let's understand where we are on this issue. Senator Daschle, in good faith, Friday, came to the floor and said we need to get to the business at hand. There is an important marriage amendment pending about which people on both sides of the aisle have strong feelings. Therefore, it would be better that we vote on the amendment, the one that has been on the Senate floor. We were told at that time by the majority leader that sounded like a pretty good idea, that he would have to check with his caucus.

Surprisingly, Friday we were unable to get that unanimous consent agreement entered. Monday we come back--no deal. In the morning, we were told they want to vote on two constitutional amendments regarding marriage. In the afternoon, we were told they want to vote on three constitutional amendments on marriage.

It is a simple choice. We are willing to vote on the legislation before this body, S.J. Res. 40. Why don't we do that? The reason we are not going to do it is because the majority has decided they want the issue. They do not care how the votes fall; they want the issue. That is wrong. Everyone should understand this is a march to nowhere, and the majority knows that.

I don't know what is happening around here. Class action is an issue for which there were enough Members here--Democrats and Republicans--to pass it. The majority would not even allow a vote--not a single vote--on that issue. They want the issue.

They want to bash Democrats as being opposed to any reform of the tort system.

On medical malpractice, on asbestos, on class action they want the issue. They don't want to resolve the issue. One would think the people in the State of Ohio, in the State of Texas, in the State of Nevada, in the State of Wisconsin, in the State of Illinois, and in every other State would know how Senators feel on the amendment before this body.

They are not going to get that chance because we are going to be forced into a procedural vote. That is wrong.

We are willing to vote on S.J. Res. 40. We have said that. We keep saying that, but, no, the issue is more important than the merits of this matter, which is too bad.

The Senator from Wisconsin.

Sen. Russ Feingold

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Mr. President, the Constitution of the United States is a historic guarantee of individual freedom. It has served as a beacon of hope, an example to people around the world who yearn to be free and to live their lives without government interference with their most basic human decisions.

I took an oath when I joined this body to support and defend the Constitution. I am saddened, therefore, to be standing on the floor today debating a constitutional amendment that is inconsistent with our Nation's history of expanding freedom and liberty. It is all the more unfortunate because it has become all too clear that having this debate at this time is aimed at scoring points in an election year. Even a leading proponent of this amendment admits that we are engaged in a political exercise, pure and simple.

Paul Weyrich, president of the Free Congress Foundation, recently stated:

The President has bet the farm on Iraq.

So the proper solution, according to Mr. Weyrich, is to ``change the subject'' from Iraq to the Federal marriage amendment.

Mr. Weyrich also recently stated:

If [President Bush] wishes to be reelected then he had better be up front on this issue, because if the election is solely on Iraq, we're talking about President Kerry.

I am loathe to come to that kind of conclusion. But I believe it to be the truth.

There we have it. This proposed constitutional amendment is a poorly disguised diversionary tactic that is essentially a political stunt.

Will this proposed constitutional amendment create jobs for mothers and fathers, husbands and wives, and stop the flow of American jobs overseas?

Will this proposed constitutional amendment secure a good education for our children? Will this proposed constitutional amendment improve the lives of American families on any of these issues? Obviously not.

Instead of Congress and the President getting to work on issues that would help American families, we are spending time--in fact a lot of time--on the Senate floor on a poorly thought out, divisive, and politically motivated constitutional amendment that everyone knows has no chance of success in this Chamber. What is even more troubling is that this effort risks stoking fear and encouraging bigotry toward one group of Americans.

So here we are, debating a constitutional amendment in search of a justification. This debate is not really about supporting marriage. We all agree that good and strong marriages should be supported and celebrated. The debate on this floor today is about whether we should amend the U.S. Constitution to define marriage. The answer to that question has to be no. We do not need Congress to legislate for all States, for all time, on a matter that has been traditionally handled by the States and religious institutions since the founding of our Nation. For that reason alone, this amendment should be defeated.

At the outset, let me state in the strongest terms I can that I object to the Senate discussing and debating this proposed constitutional amendment without it first going through the Senate Judiciary Committee. We are here today debating a proposed amendment to our Nation's governing charter. In fact, this is the very first time this particular amendment has even been brought before the Senate, and neither the Judiciary Committee nor the Constitution Subcommittee has debated and marked up this proposal.

One might ask why the supporters of this proposed amendment feel the need to rush to the floor and bypass the committee process. I suspect it is because they fear they do not have enough votes on the committee to approve the amendment and report it to the floor. It may also be that the time it would have taken to examine the amendment and debate it in committee would have interfered with the predetermined political schedule for considering it on the Senate floor. Or perhaps that committee consideration would expose the weaknesses in the amendment and reduce support in the Senate. But in any event, the decision to bypass the committee process is highly unusual and very much to be regretted.

Senate leadership has not previously made a habit of bypassing the committee process when it considers a constitutional amendment. In fact, in this session of Congress alone, the Constitution Subcommittee has held markups on three proposed constitutional amendments: the victims' rights amendment, the continuity of government amendment, and, most recently, the flag amendment. The Judiciary Committee should be allowed to serve its proper role in marking up proposed constitutional amendments before they are brought to the Senate floor.

Respecting the committee process for any piece of legislation is important. But it is absolutely necessary for proposed amendments to the Nation's Constitution. Amending the Constitution should not be taken lightly. A rush to debate and pass this amendment--particularly since it raises so many questions--is not in the best interests of this body or of this country.

I might add that in the past quarter century, only two constitutional amendments were considered by the full Senate without committee consideration. One of these amendments, involving campaign finance restrictions, was discharged from committee by unanimous consent so it could be debated at the same time as campaign finance reform legislation. The other amendment to be brought directly to the Senate floor was an amendment to abolish the Electoral College and provide for the direct election of the President. What happened on the Senate floor to that amendment is very instructive.

In 1979, the current chairman of the Judiciary Committee, the Senator from Utah, was serving in the position that I hold today, the ranking member of the Constitution Subcommittee. He strongly objected to allowing a constitutional amendment to be brought to the Senate floor without first going through the Constitution Subcommittee and the Judiciary Committee.

Senator Hatch stated the following during the debate in 1979:

As the ranking minority member of the Committee on the Judiciary, Subcommittee on the Constitution, I feel very strongly that there are ways to propose constitutional amendments and there are ways not to propose constitutional amendments. In this particular case, I think this is not the way to propose a constitutional amendment, and especially one that has the potential of altering the basic democratic federalism of the American political structure.

He went on to say:

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.

I could not agree more with the words of a then somewhat junior Senator who is now the distinguished chairman of the Judiciary Committee. His view then is exactly my view now, and I think the whole Senate should take his position very seriously.

His position was supported by another distinguished Republican member of the Judiciary Committee, Senator Alan Simpson of Wyoming, who said the following:

We are talking about amending the fundamental law of the land--the law that controls the creation and enforcement of all other laws, the law that embodies the procedural consensus and most basic values of all Americans, that gives our nation much of its unity and our government its legitimacy. We should consider proposals to amend the Constitution more carefully than any other measure that comes before us.

Senator Simpson continued:

I think the American people would strongly disapprove of what is being attempted here. This kind of procedure should not be used for a constitutional amendment. It is bound to adversely affect--to some degree the legitimacy of the process. I know it will affect us all greatly if this amendment is passed without adequate consideration by the present Senate.

And he added the following, and having served with Senator Simpson, I can imagine the gentle irony in his voice:

Perhaps I will eventually learn that Senators do not have time to make considered decisions even on amendments to the Constitution. . . . However, I am not at that point yet. I trust it will never be bad form in the U.S. Senate to demand respect for the legislative process.

Finally, let me quote the then-ranking member of the Judiciary Committee, Senator Strom Thurmond, who served in this body for nearly a half century and as Chairman of the Judiciary Committee for 6 years. Senator Thurmond strongly supported his colleague, the Senator from Utah. He said:

The best place to study these issues is before the full Judiciary Committee of the U.S. Senate. I see no reason why this committee should be short circuited by this bill not being referred here. 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.

Senator Thurmond concluded:

The Judiciary Committee is the proper machinery for referral of this resolution. It is set up under our rules for considering a measure of this kind. It should be utilized and should not be sidestepped as is attempted to do here with this procedure.

This debate, which took place just over 25 years ago, had a good outcome. The Senate voted to send the constitutional amendment back to the Judiciary Committee. Those Senators who urged the Senate not to bypass the committee process prevailed.

Now, a quarter of a century later, we are in a similar situation. All of the Democrats on the Judiciary Committee sent a letter to the Committee Chairman a few weeks ago, urging him to follow regular order on this amendment and let the full Committee and Subcommittee on the Constitution debate and mark up this constitutional amendment. I ask that our letter be printed in the Record.

There being no objection, the material was ordered to be printed in the Record, as follows:

Dear Mr. Chairman: Last week, the Republican leadership announced that it will bring the Federal Marriage Amendment (``FMA'') to the floor of the Senate during the week of July 12. Press reports indicate that this particular date was chosen because some want to have a vote on this amendment prior to the Democratic convention at the end of the month. We urge you to prevail upon your colleagues in the leadership to allow the Judiciary Committee and the Subcommittee on the Constitution, Civil Rights, and Property Rights to debate and mark up the amendment prior to its being taken up on the floor. The Judiciary Committee has a long and productive tradition of considering amendments to the Constitution. We believe that breaking with that tradition in this instance would be a serious mistake. The FMA has never before been considered by the Senate. It is a controversial measure sure to inspire heated debate on the floor and in the country. So far, four hearings have been held on this topic in both the Senate and the House. Religious leaders, legal scholars, legislators, psychologists and other health professionals, and advocates for children and families are divided on the need to amend the Constitution in this way. It seems clear to us that there is no consensus in the Senate, or in the country, that this amendment is needed or appropriate. Furthermore, while the language of the FMA has recently been modified, there is still significant doubt as to its intent and effect. In these circumstances, we believe it is premature to consider the amendment at all, but at the very least, consideration by the Judiciary Committee may clarify and even narrow the issues for the floor. As you know, it is highly unusual for a constitutional amendment to come to the Senate floor without committee action. In the last decade, constitutional amendments relating to a balanced budget, term limits, flag desecration, and victims rights have all gone through the Judiciary Committee prior to receiving floor consideration. The only amendment that received a floor vote without first being marked up in committee was Sen. Hollings' campaign finance constitutional amendment. That measure was discharged from committee by unanimous consent so it could be debated on the floor during debate on campaign finance reform legislation. You will undoubtedly recall that during the 96th Congress, a constitutional amendment providing for the direct election of the President and Vice-President was brought directly to the Senate floor. You argued strenuously at that time for ``regular order'': ``As the ranking minority member of the Committee on the Judiciary, Subcommittee on the Constitution, I feel very strongly that there are ways to propose constitutional amendments and there are ways not to propose constitutional amendments. . . . I think this is the way not to propose a constitutional amendment. . . . 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.'' Cong. Rec. 5003-5004 (Mar. 14, 1979). Your arguments prevailed and the Senate agreed to recommit the amendment to the Judiciary Committee. Mr. Chairman, you were right in 1979 that the proper course to follow when an amendment to the Constitution of the United States is proposed is to allow the Judiciary Committee to consider it and report it to the floor before the full Senate is asked to debate it. That is the course that should be followed here. We hope you will continue to protect the jurisdiction of the Committee in discussions with those who want to rush the Senate into a premature vote for political reasons. Thank you for your consideration. Sincerely, Patrick Leahy, Herb Kohl, Charles E. Schumer, Edward M. Kennedy, Dianne Feinstein, Richard J. Durbin, Joseph R. Biden, Jr., Russell D. Feingold, John Edwards.

Sen. Russ Feingold

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Unfortunately, our pleas have fallen on deaf ears. The Judiciary Committee, which in the last decade has considered and reported to the floor constitutional amendments dealing with a balanced budget, term limits, flag desecration, and victims' rights has been bypassed for this Federal marriage amendment. I have not heard a compelling argument explaining why the committee process should be ignored in this case.

In fact, I have not heard even a remotely persuasive argument of any kind why the committee process should be bypassed.

The committee process is even more important for this amendment than for some of the amendments we have considered recently. This amendment is being considered for the first time in the Senate. Changes have been made to the language of the amendment within the past few months. Just yesterday, we heard that further changes are being contemplated by some supporters of the amendment. There is significant doubt about how this amendment will be interpreted and what effect it will have on a whole variety of state and local laws and ordinances. It is exactly in this situation that the committee process can be very helpful. Issues can be explored in depth and modifications can be offered to clarify the meaning and effect of the amendment. It is not clear what would happen in our committee if we were given the opportunity to mark up this amendment. But I know we would have a much better idea of what the amendment does and doesn't do than we have today.

The Framers of the Constitution deliberately put into place a difficult process for amending the Constitution to prevent the Constitution from being used as a tool for enacting policies better left to the legislative process. A proposed amendment must pass both houses of Congress by a two-thirds majority, not a simple majority. After a proposed amendment has passed both Houses, it must be ratified by three-fourths of the states.

Citizens for the Constitution, a bipartisan blue-ribbon committee of former public officials, journalists, professors, and others, has suggested a set of guidelines for evaluating proposed amendments to the Constitution. The members of this committee are people who do not necessarily agree with each other on the substantive merits of proposed amendments, but they do agree that a deliberative, respectful process should be followed.

Citizens for the Constitution reports that in the history of our nation, more than 11,000 proposed constitutional amendments have been introduced in Congress, but only 33 have received the needed congressional supermajorities and only 27 of those have been ratified by three-fourths of the States. The bar for amending our Constitution is very high indeed.

One guideline from Citizens for the Constitution, is particularly relevant to our discussion today. The guidelines ask, ``has there been a full and fair debate on the merits of the proposed amendment?'' In this case, the answer is no. There has not been a full debate. We have had four hearings in the Judiciary Committee but there are still unanswered questions about this amendment. This is especially troubling because the sponsors of the amendment have changed its text during the course of our hearings and even stated conflicting interpretations of their amendment. The committee process could help us sort these issues out and narrow them for the floor. But the committee process has been abandoned for this amendment. That is a real shame.

The current procedural situation highlights the problem with bypassing the Judiciary Committee. The Senator from Colorado introduced the first version of the Federal marriage amendment in November of last year. A revised version was then introduced the morning of a hearing in the Judiciary Committee in March of this year.

Now, after bypassing the committee to bring the amendment to the floor of the Senate, we hear that supporters want a vote on yet another version of the amendment. We had four hearings in the Judiciary Committee on the issue of same sex marriage, but none of them concerned this new text that the leadership now wants to bring to a vote. That is why we needed a subcommittee and committee markup on this amendment. So alternative language could be considered and debated. That didn't happen here and that is why there is ``disarray'' among supporters of the amendment as one press report put it this morning. So instead of an up or down vote on the amendment before us, we will most likely have a procedural vote tomorrow. And the reason for that, make no mistake, is that this amendment simply was not ready for floor consideration. It wasn't ready. It should have gone through the Judiciary Committee.

Aside from my objection to the failure to follow the proper process and allow committee consideration of this amendment, as was so eloquently argued 25 years ago by the Senator from Utah, Senator Simpson and Senator Thurmond, I also object to this amendment on the merits.

There is no doubt that the proposed federal marriage amendment would alter the basic principles of federalism that have served our nation well for over 200 years. Our Constitution granted limited, enumerated powers to the Federal Government, while reserving the remaining issues of government, including family law, to State governments. Marriage has traditionally been regulated by the States. As Professor Dale Carpenter told the Constitution Subcommittee last September, ``never before have we adopted a constitutional amendment to limit the States' ability to control their own family law.''

Yet, that is exactly what this proposed amendment would do. It would limit the ability of states to make their own judgments as to how best to define and recognize marriage or any legally sanctioned unions.

Surely both Republicans and Democrats can agree that marriage is best left to the States and religious institutions.

One of our distinguished former colleagues, Republican Senator Alan Simpson, opposes an amendment to the Constitution on marriage. In an op-ed in the Washington Post last September, he stated:

In our system of government, laws affecting family life are under the jurisdiction of the states, not the federal government. This is as it should be. . . . [Our Founders] saw that contentious social issues would be best handled in the legislatures of the states, where debates could be held closest to home. That's why we should let the states decide how best to define and recognize any legally sanctioned unions--marriage or otherwise.

Columnist William Safire has also urged his conservative colleagues to refrain from amending the Constitution in this way. Commentator George Will takes the same position.

I recognize that the current debate on same-sex marriage was hastened by a decision of the highest court in Massachusetts issued last fall. That decision, the Goodridge decision, said that the state must issue marriage licenses to same-sex couples. But the court did not say that other States must do so. And it did not say that churches, synagogues, mosques, or other religious institutions must recognize same-sex unions. Even Governor Romney, who testified before the committee at our last hearing, admitted that the court's decision in no way requires religious institutions to recognize same-sex unions. No religious institution is required to recognize same-sex unions in Massachusetts or elsewhere. That was true before the Goodridge decision, and it remains true today.

I might add, that this Federal amendment would appear to interfere with the will of the people of Massachusetts who have already taken steps to respond to their court's decision. It would very likely nullify the state constitutional amendment that is currently pending in Massachusetts.

Now, the supporters of the Federal marriage amendment would have Americans believe that if same-sex couples are allowed to marry in Massachusetts, we will soon see courts in other states requiring those States to recognize same-sex marriages, too. But this is a purely hypothetical concern, hardly a sound basis for amending our Nation's governing charter.

As Professor Lea Brilmayer testified at a Constitution Subcommittee hearing, no court has required a State to recognize a same-sex marriage performed in another State. And as Professor Carpenter testified, ``the Full Faith and Credit Clause has never been understood to mean that every state must recognize every marriage performed in every other state. Each state may refuse to recognize a marriage performed in another state if that marriage would violate the public policy of that state.''

In fact, Congress and most States have already taken steps to reaffirm this principle. And these actions so far stand unchallenged. In 1996, Congress passed the Defense of Marriage Act, a bill I did not support, but it is now the law. DOMA is effectively a reaffirmation of the Full Faith and Credit Clause as applied to marriage. It states that no State shall be forced to recognize a same-sex marriage authorized by another state.

In addition, 38 States have passed what have come to be called ``State DOMAs,'' declaring as a matter of public policy that they will not recognize same-sex marriages.

There has not yet been a successful challenge to the Federal or State DOMAs. Of course, it is possible that the law could change. A case could be brought challenging the Federal DOMA or a State DOMA, and the Supreme Court could strike it down. But do we really want to amend the Constitution just in case the Supreme Court in the future reaches a particular result? We should all pause and think about the ramifications of our action before we launch a preemptive strike against the governing document of this Nation.

Former Representative Bob Barr, the author of the Federal DOMA, strongly opposes amending the Constitution. He believes that amending the Constitution with publicly contested social policies would ``cheapen the sacrosanct nature of that document.''

He also warned:

We meddle with the Constitution to our own peril. If we begin to treat the Constitution as our personal sandbox, in which to build and destroy castles as we please, we risk diluting the grandeur of having a Constitution in the first place.

My colleagues, those are the words of the author of the Federal DOMA statute. That is what he said about the wisdom of trying to amend the Constitution in this manner.

Concerns have also been raised that the Federal marriage amendment could prevent the people of a State from choosing to recognize civil unions or grant domestic partnership benefits at the State level. The proposed amendment could be construed to challenge already existing civil union and domestic partnership laws or to bar future attempts to enact such laws. Representative Barr also warned that the proposed marriage amendment could apply to not only States, but private sectors as well. Certainly, our hearings in the Judiciary Committee did not lay these concerns to rest. If anything, they made them stronger.

We should not seek to amend the Constitution in a way that would reduce its grandeur. Under our longstanding system of federalism, we should leave the regulation of marriage to the States and religious institutions and get to work on the real issues that Americans are facing and deserve our attention and action.

As I stand here, there are Americans across our country out of work, languishing in failing schools, struggling to pay the month's bills, or worrying about their lack of health insurance. Instead of spending our limited time this session on a proposal that is destined to fail and will only divide Americans from each other, we should be addressing the issues that will make our Nation more secure and the future of our families brighter.

I urge my colleagues to oppose this ill-advised and divisive constitutional amendment.

I yield the floor.

The Senator from Texas.

Sen. John Cornyn

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Mr. President, I think under the previous consent order we would now go to 30 minutes on this side and then over to the Senator from Illinois for the next 30 minutes. We may, in fact, depending on who shows up, try to divide our 30 minutes among several Senators. I ask unanimous consent that we be allowed to do so in case there is any doubt.

Without objection, it is so ordered.

Sen. John Cornyn

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Mr. President, I am delighted that we are finally beginning to have a real debate on the floor of the Senate on the importance of preserving traditional marriage. Up until this point, I am sorry to say, we really hadn't had much of a debate because our attempts to raise this issue, starting on Friday, had been met mainly with silence from the other side. But we have had a number of Senators--Senators Boxer, Reid, now Feingold--who have spoken and stated their objections. I would like to respond briefly. I believe then that Mr. Inhofe, the Senator from Oklahoma, will be here. I will certainly turn to him.

First of all, we are told by the distinguished Democratic whip that Republicans have raised a political issue. I would suggest to you that when judges in Massachusetts and elsewhere threaten to mandate same-sex marriage on the people of this country without the opportunity for the people of this country or their elected representatives to cast a vote or to have a voice in that decision, that is not a vote in favor of democratic government, one preserved by our Constitution that recognizes the sovereignty of a free people, not of a few life-tenured judges or perhaps judges who none of us have had a chance to vote on or to express any disapproval of in terms of judges from Massachusetts who have radically redefined the institution of marriage in that State.

Contrary to the hopeful expressions by some of my colleagues and perhaps others in the media, this is not an issue that can just be confined to one State, the State of Massachusetts, because, in fact, same-sex couples have gone to that State and have taken advantage of this new law and then moved back to their States of residence, 46 different States. And then, of course, we understand the process. And then a number of those have, in turn, filed lawsuits in their home States seeking to force legal recognition on their same-sex marriage that was conducted in Massachusetts in their home State.

This is not an isolated event. This is part of a long-term litigation strategy. Indeed, we know that even as long ago as when the Defense of Marriage Act was passed by this body overwhelmingly--I believe it was 85 Senators who voted in favor of it on a bipartisan basis--there were some Senators back then who, of course, didn't vote for it, such as the Senator from Wisconsin, as is certainly his privilege. But we know that others did not vote for it at the time, including Senator Kerry, who said at the time:

DOMA is unconstitutional, unnecessary, and unprecedented. This is an unconstitutional, unprecedented, unnecessary, and meanspirited bill.

At the same time, of course, 85 of his colleagues in this body on a bipartisan basis sought to express their confidence in the importance of preserving traditional marriage back then. Then, of course, there were other Senators who made the same expression.

Legal scholars have for some time now, including Laurence Tribe from Harvard Law School, Cass Sunstein, and others, expressed their opinion as a legal matter that the Defense of Marriage Act is unconstitutional, and then we have, most recently, the most recent edition of the Harvard Law Review, which is entitled ``Litigating The Defense of Marriage Act, The Next Battleground For Same-Sex Marriage.'' This literally sets out a roadmap for any lawyer who wants to challenge the preservation of traditional marriage in their State or, indeed, in any State in the United States by seeking a judicial declaration in a court that the Federal Constitution mandates same-sex marriage.

So this is not some political issue that we or the leadership on this side of the aisle dreamed up. This is a debate that has been raging for some time now, at least since 1996, when Senator Kerry, Senator Kennedy, and others expressed on the public record that they believed the Defense of Marriage Act was unconstitutional at the time. They were parroting the statements of legal scholars and others to the same effect.

So this is, in my view, a question of whether we the people have a say. As Abraham Lincoln said, we are a government of the people, by the people, and for the people. But what our opponents on the other side of the aisle and on this issue would say is, look, we have four judges in Massachusetts who have laid down the law in Massachusetts, and there is really nothing you can do about it. The fact is, it has now been exported to 46 other States, and there are approximately 10 lawsuits presently pending to seek to force the recognition of those same-sex marriages in those States, and this is part of a national litigation strategy.

I say to those who think we ought to sit on the sidelines and remain spectators and remain silent, we are not going to remain silent, we are not going to stand still, nor did the Framers of our Constitution contemplate the people standing still when, by virtue of the passage of time and experience, or in this case when judges seek to amend the Constitution under the guise of interpretation, none of the Framers, no part of the Constitution contemplates that the people of this country should just remain silent.

If we want a government of the people, by the people, and for the people, this is an important debate. I want to say something before I defer to the Senator from Oklahoma, who wants to speak, just by way of response--and I will reserve the rest of my remarks for the remaining time we have allotted in this 30-minute timeslot.

The Senator from Nevada, the distinguished Democratic whip, has chastised this side of the aisle, the Republican majority leader, for refusing to accept their offer for an up-or-down vote on the Allard amendment. What he didn't tell you is they stipulated that it must be without any amendments being offered on the floor. In other words, their offer attempted to stifle debate and stifle the right of Senators to offer amendments. They know, as we all know, there are other amendments that have been discussed over the last year or so. I think if we want to have a full, fair, and honest debate, since there are concerns there wasn't adequate deliberation in the Judiciary Committee, this is the place to have it. We ought not to try to stifle debate or the right of any Senator to offer an appropriate amendment.

At this point, I will reserve the remainder of our allotted time and ask that the Senator from Oklahoma be recognized.

The Senator from Oklahoma is recognized.

Sen. James M. Inhofe

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I thank the Senator from Texas.

Mr. President, I have been watching, with a great deal of interest, the debate that has been taking place. I took some time last night to get what I believe to be very salient quotes. One is by an Irish poet, William Yeats:

I think a man and a woman should choose each other for life, for the simple reason that a long life with all its accidents is barely enough time for a man and a woman to understand each other and . . . to understand is to love.

I think there are several of us in this room, including the Presiding Officer, who understand very well what Dr. Yeats is talking about.

The next one comes out of the Talmud, the Jewish oral interpretation of the Torah:

A wife is the joy of a man's heart.

Mark Twain said:

After all these years, I see that I was mistaken about Eve in the beginning; it is better to live outside the Garden with her than inside it without her.

Homer, the Greek philosopher, said:

There is nothing nobler or more admirable than when two people who see eye-to-eye keep house as man and wife, confounding their enemies and delighting their friends.

William Penn said:

Between a man and his wife nothing ought to rule but love.

Andrew Jackson said:

Heaven will be no heaven to me if I do not meet my wife there.

Those things sound good and poetic. I happen to have been married for 45 years. My wife and I have 20 kids and grandkids and it started just with us. We think about the tradition in this country and how it has been this way as long as we can remember.

I have heard people say on this floor, when talking about this issue, that this perhaps should be a State issue. As a general rule, you will not find anybody who is a stronger supporter of State rights than I am. But this is a national issue. The definition of marriage is and has been a national issue.

In the late 19th century, Congress would not admit Utah into the Union unless it abolished polygamy and committed to the common national definition of marriage as one man and one woman.

In 1996, Congress passed a Defense of Marriage Act into law, which defines marriage as one man and one woman for the purposes of all Federal law.

Another, and perhaps more compelling, argument that this should be handled on a Federal level is that people constantly travel and relocate across State lines throughout the Nation. Same-sex couples are already traveling across country to get married. As a result of this mobility, same-sex couples with marriage certificates will become entangled in the legal systems of other States in which they live. They will do business, buy and sell property, write wills, commit and suffer torts, go to the hospital, get divorced, and have custody battles over their children.

A State-by-State approach to gay marriage will be a logistical and legal mess that will force the courts to intervene and require all States to recognize same-sex marriages. This is the only possible outcome.

This issue needs to be addressed now. The definition of marriage must be addressed, and it must be addressed now. Activist lawyers and judges are working quickly through the courts to force same-sex marriage on our country.

In June of 2003, the U.S. Supreme Court signaled its possible support for same-sex marriage when it struck down a sodomy ban in Texas. That was Lawrence v. Texas. I am sure the junior Senator from Texas is very familiar with that.

Earlier this year, the Massachusetts Supreme Court ruled that same-sex couples could marry, and that ruling went into effect on May 17. The State's high court's ruling clearly ignored tradition--even its own State legislature.

In response to the courts ruling, the Massachusetts Senate drafted a ``civil union'' bill specifically designed to satisfy the court's edict while preserving traditional marriage.

Despite the fact that all legal rights and benefits were provided in the civil unions legislation, the court rejected this alternative legislation, insisting on redefining marriage.

In his dissenting statement, Massachusetts Supreme Court Justice Sosman said:

It is surely pertinent . . . to recognize that this proffered change affects not just a load-bearing wall of our social structure but the very cornerstone of that structure. The majority stripped the elected representatives of their right to evaluate ``the consequences of that alteration, to make sure that it can be done safely, without either temporary or lasting damage to the structural integrity of the entire edifice.''

Even Massachusetts Gov. Mitt Romney, in his testimony on June 22, 2004, before the Senate Judiciary Committee, stated:

Marriage is not an evolving paradigm, as the court said, but it is a fundamental and universal social institution that bears a real and substantial relation to the public health, safety, morals, and general welfare of all the people of Massachusetts. We need an amendment that restores and protects our societal definition of marriage, [and] blocks judges from changing that definition . . . at this point, the only way to reestablish the status quo . . . is to preserve the definition of marriage in the federal Constitution before courts redefine it out of existence.

Not only has the Massachusetts court ruling affected that State, it has and will continue to open the floodgate of similar decisions by other State courts across the country.

Lawsuits are already pending in 11 States to ask the courts to declare that traditional marriage laws are unconstitutional. Same-sex couples from at least 46 States have received marriage licenses in Massachusetts, California, and Oregon and have returned to their home States. Many of these couples will now sue to overturn their home State's marriage laws. There is already a lawsuit in Seattle to force the State to recognize same-sex marriage in Oregon.

Unfortunately, the Federal Defense of Marriage Act, DOMA, does not protect States from lawsuits such as these. State and Federal courts are poised to strike DOMA down under the equal protection and due process clauses in the Constitution. This would essentially force recognition of same-sex marriages.

Why protecting traditional marriage matters: Marriage is about much more than romantic love. I know from my experience. My wife Kay and I have been married for 45 years. We understand these things. For the purpose of society and our legal system, marriage is the ideal environment for raising children and thriving communities.

Our laws protect marriage between a man and a woman, not because of love or romance, but because marriage provides a good, strong, stable environment for raising children and is good for society as a whole. The evidence of the benefits to children being raised by a mother and father is overwhelming.

In societies where marriage has been redefined, potential parents become less likely to marry and out-of-wedlock births increase. This is because marriage loses its unique status in society as the institution where childbearing and parenting is centered. It becomes little more than an optional arrangement, not the presumptive locus of family life.

According to a February article in the Weekly Standard by Stanley Kurtz:

A majority of children in Sweden and Norway are born out of wedlock.

A majority, that is more than half of the children are born out of wedlock.

He goes on to say:

Sixty percent of first-born children in Denmark have unmarried parents--not coincidentally, these countries have had something close to full gay marriage for a decade or more. In 1989, Denmark had legalized de facto gay marriage, and Norway and Sweden followed in 1993 and 1994, respectively.

Additionally, according to Barbara Dafoe Whitehead, codirector of the National Marriage Project at Rutgers, State University of New Jersey, in her testimony before the Senate Health, Education, Labor and Pensions Committee on April 28 of this year, marriage has many benefits. She is speaking clinically when she gives these evaluations.

It can be a source of ``economic, educational, and social advantage for most children. Children from intact families are far less likely to be poor or to experience persistent economic insecurity. Estimates suggest that children experience a 70-percent drop in their household income in the immediate aftermath of divorce and, unless there is a remarriage, the income is still 40-45 percent lower 6 years later than for children from intact families.''

Ms. Whitehead goes on to say:

Children from intact married parent families are more likely to stay in [and do better in] school.

In fact, according to Patrick Fagan, a fellow at the Heritage Foundation, in his testimony before the Senate Subcommittee on Science, Technology, and Space on May 13 of this year:

U.S. children from intact families that worship God frequently have an average GPA of 2.94 while children from fragmented families that worship little or not at all have an average GPA of--

Some 30 percent or less.

Ms. Whitehead also says:

Marriage provides economies of scale, encourages specialization and cooperation, provides access to work- related benefits such as retirement savings, pensions, and life insurance, promotes saving, and generates help and support from kin and community. On the verge of retirement, one study found married couples' net worth is more than twice that in other households. A study of retirement data from 1992 by Purdue University sociologists found that individuals who are not continuously married have significantly lower wealth than those who remain married throughout the life course.

That is significant because we have been talking about the emotional side. We have been talking about the things that I think are no-brainers, that most of the American people, in spite of the arguments to the contrary, talk about. But there are economic reasons. There are reasons of prosperity and happiness that are being dealt with in this resolution.

I have quotes from a number of Senators and conservatives. They have done such a good job, those who are in this Chamber. In listening, I have found a few points they said that are worth repeating.

My colleague, Senator Allard from Colorado, believes our Founding Fathers never envisioned that we would be changing the very structure of marriage, that we would be changing this core structure of society. We are in danger of losing a several-thousand-year-old tradition, one that has been vital to the survival of civilization itself.

This small group of activists and judicial elite, as my colleague from Kansas, Senator Brownback, said, ``do not have a right to redefine marriage and impose a radical social experiment on our entire society.''

``This is not a battle over civil rights, it is a battle over whether marriage will be emptied of its meaning in contradiction to the will of the people and their duly elected representatives.''

This is an ``assault on the American family,'' as my colleague, Senator Cornyn, the junior Senator from Texas, said.

And my colleague from Alabama, Senator Sessions, said:

If there are not families to raise . . . children, who will raise them? Who will do that responsibility? It will fall on the State.

This, to me, is one of the most troubling outcomes of the whole gay marriage issue. As my colleague from California, Senator Boxer, said, we have ``misplaced priorities'' in addressing this issue right now. I say to my colleague, I do not think our priorities are misplaced when we are looking at creating a whole new class of children from these gay marriages who could end up completely dependent on the State, on the taxpayers--the American people.

I do not think our priorities are misplaced when we are concerned about following in the footsteps of countries where out-of-wedlock births have skyrocketed. And I do not think our priorities are misled when some activist, rogue judges and others are undermining the legislative process in taking away the voice of our elected officials.

Additionally, several prominent, respected conservative voices in our country have spoken out against the idea of gay marriage and in support of the traditional definition.

According to ``Focus on the Family,'' headed by Dr. James Dobson--I was just on his program a little while ago:

Family is the fundamental building block of all human civilizations. Marriage is the glue that holds it together. The health of our culture, its citizens, and their children is intimately linked to the health and well-being of marriage.

Chuck Colson, a man who most people in this body know quite well, was the founder of Prison Fellowship. He has this to say about the prospect of gay marriage:

The redefiners of marriage are working tirelessly. Their agenda is to tear down traditional marriage and make it meaningless by removing its distinctives.

He goes on to say:

Marriage, as an institution between a man and a woman, is basically for procreation. Homosexual marriage, therefore, is an oxymoron. There is no such thing. It is something else. It is two people coming together for recreation, not for procreation. Procreation can only happen between a man and a woman. Every society has recognized this, going back to the beginning of recorded history. Societies recognize that it is in their self-interest to preserve this institution and to give it a distinct status under the law. Marriage is the institution that civilizes and propagates the human race. It is where children are raised and learn the ways of right and wrong. Their consciences are formed in the family.

Finally, the Reverend Billy Graham's son, Franklin Graham, was in my hometown of Tulsa a couple of weeks ago. He said:

There is a real movement for same-sex marriage. We could lose marriage in this country the way that we know it.

That is really what this is all about. We can dance around it and try to cater to certain groups, but I find something that has served me well for a number of years when something like this comes up, and that is to go back to the law, go back to the Scriptures. In Genesis 2:18, 21-24, God said:

It is not good that man should be alone; I will make him a helper comparable to him . . . and the Lord God caused a deep sleep to fall on Adam, and he slept; and He took one of his ribs, and closed up the flesh in its place. Then the rib which the Lord God had taken from man He made into a woman, and He brought her to the man. And Adam said, ``This is now bone of my bones and flesh of my flesh. She shall be called woman, because she was taken out of man.'' Therefore a man shall leave his father and mother and be joined to his wife, and they shall become one flesh.

In Matthew 19:4-6, Jesus said:

Have you not read that He who made them at the beginning made them male and female, and for this reason a man shall leave his father and mother and be joined to his wife, and the two shall become one flesh? So then, they are no longer two but one flesh . . .

The reason I read these two Scriptures is because they were quoted at a very significant event that took place 45 years ago. It was when my wife and I were married.

I yield the floor.

Sen. Michael D. Crapo

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The Senator from Nevada.

Sen. John Ensign

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Mr. President, how much time remains on our side?

There is 2 minutes remaining.

Sen. Michael B. Enzi

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I ask unanimous consent that I be given an additional 3 minutes for a total of 5 minutes.

Without objection, it is so ordered. The Senator from Nevada is recognized for 5 minutes.

Sen. John Ensign

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Mr. President, I rise today to speak on a topic that is very important. That is the preservation of the most important structure in our society. I rise to speak on the topic of marriage and the need for the Federal Marriage Amendment. But before I do, I want to thank my good friend from Oregon, Senator Gordon Smith, for the speech he gave on this very topic last Friday. His speech was eloquent and his thoughts profound. For those who did not have the opportunity to see or hear the speech, I strongly encourage them to read it. I also want to thank the floor manager of this resolution, Senator Cornyn from the State of Texas, for his thoughtful commentary and his leadership on this issue. And so I thank both Senators.

I have given a considerable amount of thought on the topic of the Federal Marriage Amendment over the last weeks and months. My thoughts have focused on what the meaning and purpose of marriage is. All words have meaning. The word marriage has meaning deep rooted in our culture. There are certain words that have such an important meaning that they invoke strong emotions within each of us. For me, marriage is one such word. The word marriage represents an institution with historically universal understanding. Its meaning is one that has been constant throughout time and across all cultures. I can think of no other word, and no other institution, that enjoys such a special status with such an important meaning.

For me personally, I understand the importance that the presence of both a father and mother has in the life of a child. I understand this because, for a time, I was raised by a single mom. I do not, in any way, want to suggest that single parents are not doing their best to raise their children. As a single mom, my own mother did her very best to take care of me, my brother and my sister.

Single parents are doing right by their children. Single parents, like my mom, deserve to be praised. But those circumstances are not the ideal in which to raise children. Marriage is that ideal.

When I was nine, my mom met and married the man who is my dad. With their marriage, there was finally someone in our home who was a strong male role model for me and my brother. I finally had a positive example of what it meant to be a father and a husband. Someone I could look up to and someone I could emulate. My dad's presence in our house made an immediate impact on me in a way that my mother alone simply could not. His presence also impacted me in ways that has helped me love and care for my own wife and my own children.

The presence of a mother and father in the life of a child is crucial. Mothers and fathers bring their own special qualities to their own relationship and to the approach they take to raise their children. It has been said that a boy will look to his mother as the type of woman he wants to marry and his father as the model for how to treat her. For that reason, and so many more children need both a father and mother. That is the universally recognized ideal on which marriage is based.

Marriage recognizes the ideal of a father and mother living together to raise their children. Marriage is the ideal that is the cornerstone on which our society was founded. This Congress, and all previous Congresses, have enacted laws to further that ideal. In fact, in 1996, this Senate passed the Defense of Marriage Act by a vote of 85 to 14. The House of Representatives also passed DOMA overwhelmingly. My own State of Nevada has adopted a DOMA Amendment to our State constitution. As required by our State's constitution, this amendment was adopted two times by the voters of my State. So I would hope that no one in this body would take issue with the statement that marriage between one man and woman is the ideal. Congress overwhelmingly adopted legislation agreeing with that statement only 8 years ago.

For those who say that the Constitution is so sacred that we cannot or should not adopt the Federal Marriage Amendment, I would simply make two points. First, marriage, and the sanctity of that institution, predates the American Constitution. It predates the founding of our Nation and even the landing at Plymouth Rock. Marriage, as a social institution, predates every other institution on which ordered society in America, and the world as a whole, has relied including even the church itself. Second, the Founding Fathers envisioned the possibility that future generations may need to amend the Constitution. In their wisdom they allowed the amendment process to begin either with Congress or with the States. So we are considering this amendment, in the manner contemplated by the Founding Fathers, which is to say consistent with the Constitution itself.

It is with concern that I have read about how a few unelected judges and some locally elected government officials have taken steps to redefine marriage to fit their own agenda. It is not right to mold marriage to fit the desires of a few, against the wishes of so many, and to ignore the important role that marriage has played in our history.

During the course of this debate, I have heard many people suggest that the Federal DOMA law, which I referenced earlier, is not under attack. And that an amendment is premature so long as DOMA is still law. But because of last year's Supreme Court decision in Lawrence v. Texas, many Constitutional scholars believe that Federal DOMA, and State DOMAs adopted in 41 other States, that defined marriage as between one man and one woman will most certainly be struck down.

Judicial activism is a huge problem in America. The Constitution is a living document in that it can be amended by the process our Founders set up, but not by activist judges. So the question before us today is: Will the Constitution be adopted in the manner proscribed by that document or by unelected judges?

It does not appear that this amendment will pass this year. In fact, it may take years to adopt this amendment. But it is critical to have this debate and vote here in Washington, DC so that the States can continue the debate and so that the people know exactly where each one of us stands on this issue.

In the end, for a healthy society, we need to have a tolerant society but also a society which strives for the ideal. That ideal is for children to be raised by one father and one mother bonded by the institution of marriage.

I yield the floor.

The time of the Senator from Texas has expired.

The Senator from Illinois is now recognized for 30 minutes.

Sen. Richard J. Durbin

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Mr. President, for those who are witnessing this debate on the floor of the Senate, it is a historic moment. It is rare the Senate engages in a debate on the question of amending this document, the Constitution of the United States. There are so many things that divide us on the floor of the Senate, between Republicans and Democrats, but there is one thing we are united behind, and that is our oath of office. That oath of office is explicit. This, in part, is what it says. Each of us takes this oath. To the best of our ability we will:

Isn't it interesting that when this Constitution was written, our Founding Fathers wanted to make certain that whoever served as President, Vice President, Member of the House or Senate, would not swear their loyalty to the United States of America but would swear their loyalty to this document. You could not become a Member of this body unless you were prepared, under oath, to say you would preserve, protect, and defend the Constitution of the United States.

The Founding Fathers understood the importance of this document they had written. They knew it embodied within its four corners the basic principles of America. It wasn't a dead document. It was a living document which could be changed. But I think the oath of office which each of us takes is a reminder of our solemn responsibility when it comes to this Constitution.

We may propose amendments to laws, make motions on the floor, pass resolutions, make our speeches, but I am one who believes when it comes to this document we have a special responsibility. It is a responsibility which requires respect and humility--humility.

Before this Senator from Illinois will propose a change in one word in this Constitution of the United States of America, I have to be convinced, I have to be absolutely sure it is essential--essential for this union to continue and essential for the rights and liberties of every American citizen.

Oh, we debate bills back and forth. We change sentences, we change punctuation, we make wholesale changes in the law. But the laws come and go, as Members of the House and Senate come and go. This document endures.

Over 11,000 times Members of the Congress have proposed changing this document. Over 11,000 times they have come to the floor of the House or the Senate and said: The Founding Fathers didn't get it right, they didn't consider this possibility. And over 11,000 different times, overwhelmingly, their suggestions have been rejected. Why? Because of the respect and the humility which each of us brings to this debate on a constitutional amendment.

Today, those who are witnessing this debate are witnessing another attempt to amend the Constitution of the United States. How often has it been done? Since Thomas Jefferson's Bill of Rights--which originally proposed, I believe, had 12 amendments; only 10 were originally approved--we have only amended this document 17 times. One time we realized we made a mistake. We passed an amendment prohibiting the sale of liquor in the United States and a few years later we repealed it. But by and large, only 17 times in the course of the history of the United States of America has this Congress said this document is insufficient; this document does not meet the needs of America; this document must be changed.

To those who are following this debate, and to my colleagues, I will tell them the proposed amendment before us today does not meet the test. It does not meet the requirement to say to those who founded this Nation and to all who carried on since that we need to pass this Federal marriage amendment. I believe it is plain wrong. It is wrong in three specifics.

First, we are talking about the institution of marriage. Traditionally, marriage is defined by each and every State. One State establishes a certain age of eligibility. Another State will establish a certain blood test that may need to be taken. Another State will limit whether certain members of families can marry. All of these provisions and limitations on marriage are State and local responsibilities. Not once will you find in this Constitution of the United States the requirement that the Federal Government in Washington establish a standard for marriage in America. So what we are discussing today is a proposed amendment to the Constitution that is clearly outside of the purview and scope of this Constitution which we have sworn to preserve and defend.

Second, there is no court ruling that brings us to this moment in this debate. It is not as if some Federal court or even a State court has said this Constitution requires that people of the same gender be allowed to marry. Not one single court in America has said that. So we come here today, the argument being made that we should preempt the possibility that at some time in the future some court will decide that in fact a marriage between people of the same gender in one State must be upheld in other States. There has never--repeat, never--been a case in any State or Federal court that says that. Yet we come to the floor of the Senate today as if the decision were handed down last week and we must stand up once and for all to preserve the right of marriage to be confined to an institution between a man and a woman. It is traditionally a State decision on what defines marriage. There is no controversy that brings us to the floor today.

What is even worse, we come to this debate with this constitutional amendment which has been proposed, and we come to the floor to debate it without a single markup by the Senate Judiciary Committee to debate the language that is being proposed. Does that show respect for the Constitution? Does that show the appropriate humility which every Member of Congress should have? Of course it does not. Those who wrote this amendment were changing it by day. And now they want to change it again. They tell us the language given to us last week has to be changed again--maybe twice.

Does this strike you as a work in progress? Does this strike you as the kind of language which should be put in this enduring document? Or does it strike you that we are taking a roller to a Rembrandt; that we are suggesting changes in our Constitution which have not met the test, the test that they address an issue of enduring significance and that the language crafted should stand beside our Bill of Rights?

Today they argue: We need to make a few amendments in this language. We have been thinking it over this week.

What is wrong with this picture? Shouldn't we take a step back and ask whether this is necessary? Ask whether, in fact, there is a court decision which requires it? Ask whether the language which we are proposing is language which will endure for generations to come?

If we cannot answer each of those questions in the affirmative, then for goodness sakes why don't we move on? I will tell you why we are not. Because this debate is not about changing the Constitution--no. They say in politics for everything that is done, there is a good reason and a real reason. The good reason that is being given for this debate is to change the Constitution. That is not the real reason. The real reason is to change the subject of the President's election campaign because the Republican side of the aisle and those who are supporting this administration don't want to debate this Presidential election campaign on the issues most Americans identify as important in their lives. They don't want to debate the President's economic policy and the squeeze it has put on middle-income families. They don't want to debate what is happening in Iraq. They want to change the subject. They want to debate the future of marriage in America. That, to them, is more important and that is why we are here today. That is why there are statewide referenda in many battleground States like Missouri. And that is why we are hellbent to consider this amendment literally days before a certain political party coincidentally has its convention in the State of Massachusetts. That is what this is all about--changing the subject of the Presidential campaign.

Oh, they tell us in the Judiciary Committee: Incidentally, we are going to bring the flag-burning amendment up again, too. We have had this amendment up before us at other times, but they are anxious for us to vote on this again before the election campaign.

Do you know what I think we need? I don't think we need an amendment to the Constitution. I think we need a permanent law of the land that says there will be no constitutional amendment which will be proposed in a Presidential election year. Frankly, that will cause many of my colleagues to suppress the urge to use this Constitution as some sort of a political platform to try to win votes in an election.

When you take a look at this particular amendment, you find, of course, that we are considering and taking up many days of debate rather than considering other issues we ought to be talking about here on the floor of the Senate.

Do you recall the press conference last week when the Secretary of Homeland Security, Tom Ridge, told America of the danger of al-Qaida, a real danger; that they are plotting massive casualties to be brought on victims in America? We didn't know where or when, but he warned America, along with the Director of the FBI.

Then you probably read yesterday speculation about whether we might have to postpone a Presidential election because of terrorism. And you think to yourself: For heaven's sake, I guess America is still in danger; and sadly we are. Then you might think to yourself: I certainly hope the men and women serving in the Senate are doing everything they can to make our Nation safer. That is a natural reaction, one which you might expect.

All you have to do is look at the calendar of business of the Senate on the desk of every Senator and turn to the back page. You will find the status of appropriations bills that have not been considered by the Senate. Among the first two bills on the list is the Homeland Security appropriations bill--sitting on the calendar of the Senate for almost a month.

We are warned by this administration that our security is in question, that America may be in danger, and we are told by the Republican leadership on the Senate floor that we don't have time to appropriate the money to make America safer. Instead, we are going to debate a constitutional amendment over an issue that has not even reached the point in any court in the land to require a constitutional amendment.

That is just one of many issues that we could be considering.

What have we done to try to reduce the squeeze on middle-income families from increased costs for health care, increased costs for prescription drugs, increased costs for gasoline, increased costs for college education? The answer is nothing. We are too busy debating a constitutional amendment about an issue that does not exist. It says something about the priorities of the leadership.

We have not passed a budget resolution this year. We have 12 appropriations bills, including the Department of Homeland Security, that have not been enacted. This is all about changing the subject.

Paul Weyrich, CEO and chairman of the Free Congress Foundation, was very direct and blunt. He recommended that the President ``change the subject'' from Iraq to the Federal marriage amendment. It won't work because we pick up the newspaper every morning and we are reminded of the brave men and women in uniform who are literally risking their lives in Iraq. We cannot, we should not, and we will not forget them. And our attention will not be diverted from the danger to their lives and the prayers and hopes of their families. Yet that is the political agenda. That is what is before us.

We have bypassed the Judiciary Committee. The suggestion has been that we take this amendment which has been proposed, change it one, two, three, or four times, and vote on it. But the changes may include adding other amendments to it. Is that possible? Could we put in more than one constitutional amendment? Of course. So we have turned into not a Senate but a constitutional convention. Is that what we are supposed to be doing, rather than appropriating money for homeland security, rather than addressing the timely issues that America's families are facing? I hope not.

We have had one hearing on the text of a proposed amendment, and it was less than 24 hours after a new version had been written. This constitutional amendment is changing on a regular basis.

I might say that Senator Cornyn of Texas, on Friday, came and spoke on the Senate floor. He said those who oppose this constitutional amendment, as I do, ``have chosen to boycott good faith desire to have an honest discussion about the issue.'' That was his quote. Senator Allard and others have said similar things.

For the record, the Judiciary Committee, the committee of jurisdiction, has held four hearings on this issue. Senators Feingold, Kennedy, and I attended all four of those hearings. There was no boycott involved. We attended those hearings and asked questions about this issue. But there was never a markup. It was brought to the Senate floor with changes that are being made as we speak.

In the past, Senator Hatch, now chairman of the Senate Judiciary Committee, rejected this. He said you can't bring a constitutional amendment to the floor without at least going through the Judiciary Committee and looking at the language and seeing if there are better words. Here is what Senator Hatch said in 1979:

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.

That is what Senator Hatch said 25 years ago. But that is not the process he has followed as chairman of the committee today. He has taken a much different path.

This would be, incidentally, only the second time in history in which we would have enacted an amendment to the Constitution of the United States which would restrict the rights of American citizens.

Historically, our amendment process has been to expand the rights and liberties of Americans, African Americans, women, and others to give them voice in the democratic process. This would be the second time in history in which we would restrict the rights of Americans. The other time, as I mentioned earlier, we said with the prohibition amendment that we would restrict the right to sell liquor and alcoholic beverages in America. That is the one other time we did it. We did it because of a temperance crusade brought on by some religious groups and others, and then realized a few years later that it was wrong. This would be only the second time in history when we would use the amendment process to restrict the rights of American citizens.

We have no controversy at hand. The proposed amendment would be unique in that no constitutional amendment has been ratified in response to a State court ruling. There are four constitutional amendments that overrule Supreme Court decisions, but no constitutional amendment has ever been ratified in response to a nonexistent Supreme Court ruling. That is the case here.

As I listened to those on the other side arguing earlier, I couldn't believe some of the things they said. The Senator from Texas said when judges in Massachusetts mandate same-sex marriage on our Nation, they export that marriage to other States. That is not a fact. There is nothing that has happened in the State of Massachusetts which has changed the marriage laws in Illinois, in Wyoming, in Nevada, in Texas. Nothing they have done changes the standard for marriage in my State.

He went on to say that it is a question of whether the people shall have a voice in this process. I certainly believe the people of America should have a voice in the promulgation of law. But in this situation, the people of Massachusetts have a voice and have a process and have before them a constitutional amendment which will eliminate same-sex marriage but protect the rights of civil union. The people of Massachusetts will ultimately vote on that question as will their legislators.

If you want to give the people of Massachusetts a voice in the process, they already have it. They are exercising it. There is no need for a constitutional amendment to either embellish it or reduce it in any way.

Then, the Senator from Texas said we on the Democratic side were trying to stifle debate on this constitutional amendment by not allowing the Republicans to amend it two, three, four times, or more. We are not trying to stifle the debate. That is what this is all about. This exchange is about debate. But how can you debate a moving target? How can you debate a proposal to the Constitution of the United States which may change 15 minutes from now, an hour from now, tomorrow, or Thursday? Shouldn't the Republican majority that brings this to the floor meet their solemn obligation to put language before us befitting the Constitution and not make this a construction project, a work in progress? That is what they want to do.

The Senator from Nevada on the Republican side said earlier that judicial activists are taking away the power of the legislative branch. That is not a fact. What happened in Massachusetts happened under the Massachusetts Constitution, which is being amended by their legislature as required and submitted to the people of Massachusetts. If the people are to have the final voice on this issue in Massachusetts, that is exactly what is going to happen.

The text of this proposed constitutional amendment, incidentally, is contradictory and unclear. There are some who oppose same-sex marriage but believe that civil unions should be allowed, as they are in many States, and as recognized by many private companies. But the language of this proposed Federal amendment, as it stands today--it may change--says:

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 a union of a man and a woman.

The operative words that should have been debated in the committee, and should be debated here are ``the legal incidents thereof.''

What does it mean? Let me give a practical example. In the District of Columbia, they have enacted a law that if you have a partner you are living with of the same gender, you can declare that for purposes of being covered by your partner's health insurance. If one person in that household, two men or two women, is working, and one is not, the person working can claim the partner living at home as covered by the same health insurance policy just as it applies to men and women in marriage.

What is wrong with that? What is so scandalous about that, that people desperate for health insurance coverage would have someone they love and share a home with be covered by health insurance?

Yet this constitutional amendment would put that and other legal incidents of marriage, such as civil unions, in jeopardy.

Let me note what has been said by Vice President Cheney. He was involved in a debate with Senator Lieberman 4 years ago in the Vice Presidential race, and this issue came up. Let me read what Vice President Cheney said when it came to the issue of defining marriage:

It's really no one else's business in terms of trying to regulate or prohibit behavior in that regard. . . . I think different states are likely to come to different conclusions and that's appropriate. I don't think there should necessarily be a federal policy in this area.

That is what Vice President Cheney said. I think he is right.

Let me read what Vice President Cheney's wife said. I am sure it took courage for her to say it, but she did just this week. Lynne Cheney, the wife of Vice President Cheney:

People should be free to enter into their relationships that they choose. When it comes to conferring legal status on relationships, that is a matter left to the states.

I am sure that did not make the Vice President or his wife popular in the White House, maybe not among their Republican colleagues, but they are right. This is a decision which clearly should be left to the States.

Today at lunch, the Senate Historian told us a story of Aaron Burr, a man who had served as Vice President and a man who left the Senate under extraordinary circumstances on March 1, 1805. This is what Aaron Burr said as he left the Senate about this Senate:

You don't hear many speeches like that on the floor of the Senate anymore, but Aaron Burr was correct. This is where the debate has to take place. This is where this debate on this constitutional amendment has to end. This is where Members of the Senate who have sworn to uphold, protect, and defend this Constitution of the United States will remind our colleagues to take a step back and show the respect and humility which this document deserves. To let this constitutional amendment process be taken captive by those who are trying to win votes in November is wrong. Whether it is done by Republicans or Democrats, it is just wrong. I think the American people understand that.

There are strong feelings about a man and a woman that are shared by me and by others, but we also have strong feelings about this document, a document which I have taken an oath under God to uphold and defend. And I will do that by opposing this amendment.

Sen. Harry Reid

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Will the Senator yield?

Sen. Richard J. Durbin

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I am happy to yield.

Sen. Harry Reid

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Is the Senator aware, through the Chair I direct this question, in the State of Nevada, on two separate occasions, there was a vote by the people of the State of Nevada on whether they should include in the Nevada State Constitution a prohibition for gay marriage; is the Senator aware that took place?

Sen. Richard J. Durbin

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I was not aware.

Sen. Harry Reid

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I say to my friend, it has taken place. It was long and arduous. It took a period of years to accomplish.

Would the Senator agree that the State of Nevada had the right to do that; whether they agree with the conclusion or not, didn't they have the right to do that?

Sen. Richard J. Durbin

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Certainly.

I say to the Senator, that is the argument that has been made on the other side, that the people should be allowed to speak on the issue, and if that is the case, in Nevada, Illinois, or wherever it might be, then honoring that decision would seem to be consistent with the establishment of all America.

Sen. Harry Reid

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Through the Chair, I further question my friend, is the Senator aware in that debate over a period of years that lots and lots of money was spent in ads for and against the amendment, door-to-door activities took place, many more grassroots activities, editorials in newspapers, all in the State of Nevada? Whether you were for or against the ban on same-sex marriages, these activities took place in the State of Nevada; and now in the State of Nevada, in its constitution, there is a prohibition.

The people of the State of Nevada had a right to do that; didn't they?

Sen. Richard J. Durbin

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I believe they do. I think the Senator is correct.

Sen. Harry Reid

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Is the Senator also aware that we have been told the reason we are not going to vote on this amendment, Resolution 40 now before the Senate, is that Senator Gordon Smith has another amendment he wants to offer and he does want a vote? Has the Senator been told that is the fact?

Sen. Richard J. Durbin

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Yes, I have. Mr. REID. Through the Chair, I direct this to the Senator from Illinois. From today's Congressional Daily, p.m. edition, it says: Senator Gordon Smith, Republican from Oregon, today denied that he has insisted the Senate vote on his alternative constitutional amendment banning gay marriage, telling reporters he favors Minority Leader Daschle's proposal to vote up or down on the underlying amendment sponsored by Wayne Allard, Republican from Colorado.

Is the Senator from Illinois aware that Senator Daschle has requested on more than one occasion that we have an up-or-down vote on the resolution that is now before this Senate, that we have all been studying and doing our best to understand, that we should vote up or down on this? Does the Senator agree that is what we should do?

Sen. Richard J. Durbin

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Yes, I do. Let's bring this to a vote. The sooner, the better.

Sen. Harry Reid

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The Senator is aware, however, is he not, as stated by the majority, this is a work in progress? They, obviously, are not sure what they want to vote on. Or is it just a political issue and they want to vote on nothing, they want to have another class action where they had victory in their grasp but they did not want to work on the substance; they wanted to maintain a political issue that Democrats were obstructing, which we were not? Is the Senator aware, it could be the same situation?

Sen. Richard J. Durbin

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I say there is a striking similarity. It appears they want to vote more than they want an amendment. Let's be honest about what it is about. They want to put some Senators on the spot. Trust me, the ads will be running, if they have not started already, in States across the Nation. If you oppose this constitutional amendment, they will say you are against traditional marriage. Virtually every one of our colleagues on both sides of the aisle, for that matter, support traditional marriage between a man and a woman.

I have been married 37 years, and I think the Senator from Nevada may have been married longer. I respect this institution and have committed my life to it with my wife. I think we all understand that. But understand, as well, a ``no'' vote on this amendment will be used for political purposes to change the subject of the election campaign.

I say to the Senator from Nevada, as my time is closing, there is one point I would like to make. Things have changed in my life experience, and in many others', over the time I have been in the Congress and even before. There was a time when, if there were gay members of a family, people just did not talk about it. No reference was made to it; very little was said about it. It was the aunt or uncle who never got married and no one has talked about it.

That is changing in families across America. People have had the courage to come forward and say: I have a different sexual orientation. For some reason, God has made me with a different nature. I think more and more families are accepting of that fact, as they should be. I don't know what God's plan was in bringing a man or woman to this Earth with a different sexual orientation, but in many cases they have.

All we have said, those Members on our side, is though we may not support gay marriage or marriage of the same sex, we ask for tolerance and understanding.

The phone calls I have been receiving in my office have been phone calls generated by people who sincerely support this amendment and many who have some different agenda. It is, unfortunately, a very strident and hateful agenda. I hope that whatever the outcome of this amendment, we will say to the American people: Be tolerant; be understanding. Some people are different but they are our family. They are our neighbors. They are our fellow Americans.

This proposed constitutional amendment is divisive and unnecessary, and contains many ambiguities and unresolved issues that have not been examined or considered by the Senate Judiciary Committee.

We have less than 30 legislative days left this year. There already are more pressing issues than we could possibly address in that short time, without spending this week on a proposed constitutional amendment that even its supporters acknowledge does not have the votes to succeed.

In light of Secretary Ridge's announcement last week, we should be focusing our attention on homeland security, including port and rail security.

We must address the everyday needs and concerns of American citizens, especially those being squeezed in the middle class.

Since President George W. Bush has come to office, average weekly earnings have risen only 1 percent, while gas prices have risen 25 percent; college tuition has risen 28 percent; and family health care premiums have skyrocketed by 36 percent.

Unfortunately, this Senate has ignored these concerns and has done nothing to increase wages. For example, we have not increased the minimum wage in almost 7 years, and the benefit of that increase has been completely erased by inflation.

Even worse, unless Congress acts to restrict the President's proposed overtime regulations before our August recess, those regulations will slash the paychecks for thousands of Americans currently receiving overtime compensation by 25 percent.

Finally, we still have not passed a budget resolution this year and have 12 appropriations bills that must be enacted.

So why are we debating this constitutional amendment instead of addressing these more pressing issues?

I suggest that there is an effort here to try to divert American families from their real concerns.

In fact, this is a strategy that was advocated by Paul Weyrich, CEO and chairman of the Free Congress Foundation, who recommended that the President ``change the subject'' from Iraq to the Federal Marriage Amendment.

We must not allow for such politicization of our Constitution--our Nation's most sacred document. That is why I believe we must ban the proposal of constitutional amendments in a Presidential election year--certainly within 6 months of an election.

By considering this issue outside of Presidential election years, we may be better able to consider the implications of this proposal without added political pressures. This may be one reason why only 3 of the 27 amendments to our Constitution have been passed by Congress in Presidential election years.

Of course, I do not mean to imply that those who support this amendment have only political motives. Some of my colleagues on the other side of the aisle sincerely believe that no issue is more important than this one.

However, the Judiciary Committee simply has not given this proposed constitutional amendment the thorough and measured consideration worthy of a possible change to our constitution--certainly not if one believes this is the most important issue facing our society today.

During the 108th Congress, the Senate Judiciary Committee has held hearings on four proposed constitutional amendments: victims rights, flag desecration, the continuity of Congress, and this one.

Three of those proposed amendments have been debated and marked up by the Constitution Subcommittee, following the long-standing tradition of our committee. The amendment today is the only one that bypassed this traditional consideration.

It is ironic that the victims' rights and flag desecration amendments have followed the committee's traditional process, even though both have been considered by the Senate in the past, while this proposed amendment--which has never been considered by the Senate before--bypassed the full committee and subcommittee markups and barely even had a hearing.

Although the Judiciary Committee and Constitution Subcommittee have held four hearings on the issue of same-sex marriage, only one hearing was on the text of a proposed constitutional amendment--and that hearing was held less than 24 hours after this new version of the proposed amendment was introduced.

Furthermore, unlike our committee's hearings on the victims' rights amendment and flag discretion amendment, the only hearing on the text of this proposed amendment did not have a representative from the Department of Justice to share the administration's views.

On the issue of hearings, before I go further, I would like to respond to Senator Cornyn, who on Friday said that in committee hearings on this issue, Senators who oppose this constitutional amendment ``have chosen to boycott a good-faith desire to have an honest discussion about this issue.'' Senator Allard and others have made similar comments.

For the record, the Judiciary Committee--as the committee of jurisdiction--has held four hearings on this issue. Senators Feingold, Kennedy, and I attended all four, and at each one, Democratic Senators outnumbered Republican Senators.

This is hardly evidence of a refusal to engage in an honest discussion. In fact, just the opposite is true: We are asking for a full and thorough debate--but in the committee of jurisdiction, where such consideration is not only appropriate, but necessary, before we debate this proposal on the Senate floor.

This request is the same as the one made by Senator Hatch in 1979, when a constitutional amendment regarding the direct election of the President and Vice President bypassed the Judiciary Committee and was debated on the floor.

In that debate, Senator Hatch, then ranking member of 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.

Senator Hatch's argument prevailed, and the proposed constitutional amendment was referred to the Judiciary Committee by unanimous consent.

Unfortunately, Senator Hatch has taken a different path with this proposed constitutional amendment, which is only the second constitutional amendment in more than a decade to be debated on the Senate floor after being placed directly on the Calendar without committee referral or report.

I believe anything less than full consideration and debate by the Judiciary Committee not only would denigrate the committee process, but also would be a disservice to those who sincerely believe this is the most important issue facing our country. Without such examination, many issues in the proposal before us today will remain unresolved and unclear.

The most important issue we must resolve is whether a constitutional amendment regarding marriage is necessary.

I am aware that Article V of the Constitution provides for amendments, and I agree that the Constitution is a living document.

However, as James Madison wrote in The Federalist No. 49, the Constitution should be amended only on ``great and extraordinary occasions.''

Our Nation has heeded that advice, and although there have been more than 11,000 proposed constitutional amendments since 1789, we have amended our Constitution only 27 times, including the adoption of the Bill of Rights in 1791.

We must continue to approach constitutional amendments with great humility and respect. To do otherwise would be to take a roller to a Rembrandt.

The last time Congress submitted a constitutional amendment that was ratified by the States was more than 30 years ago, when the voting age was lowered to 18. That amendment was appropriate because it followed the principle of six other constitutional amendments that expanded voting rights.

By contrast, the proposed amendment we are considering today would be the first constitutional amendment to restrict the rights of individuals since the 18th Amendment regarding Prohibition was ratified in 1919. Fourteen years later, that amendment was repealed.

This proposed amendment also would be unique in that no constitutional amendment has been ratified in response to a State court ruling.

Furthermore, although there are four constitutional amendments that overruled Supreme Court decisions, no constitutional amendment has been ratified in response to a non-existent Supreme Court ruling. In other words, this proposal is a solution in search of a problem.

In 1996--another Presidential election year--Congress passed the Defense of Marriage Act, under which no State can force another State to recognize the marriages of same-sex couples. In other words, each State has its own power to define marriage.

In the 8 years since DOMA was passed, it has never been successfully challenged. Although many have speculated that it may be unconstitutional, not a single Federal judge in this country has indicated that DOMA is unconstitutional or unlawful in any way, shape, or form. DOMA is still good law.

Our country now has a preemptive foreign policy. I do not think we should have a preemptive Constitution. This proposed amendment would preempt the possibility that the Defense of Marriage Act will be found unconstitutional. That is premature and therefore inappropriate for an amendment to our Constitution.

The concerns I have raised thus far are reason enough to oppose this constitutional amendment. However, I have not even discussed the text of the proposal itself.

This constitutional amendment States the following:

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.

These two sentences are contradictory. The first sentence states that marriage must be between a man and a woman. But the second sentence suggests that marriage other than between a man and a woman would be permissible as long as that recognition occurred through a statute, rather than constitutional means.

Which is it? Does this proposed constitutional amendment permit States to enact laws that would allow marriage to consist of the union of same-sex couples? If so, the first sentence must be modified. If not, the language in the second sentence must be more explicit to reflect the fact that this constitutional amendment would take away the right of States to define marriage within their borders.

Furthermore, the overall intent and scope of the first sentence also are unclear. At first, this language seems straightforward enough. However, there are at least two ambiguities regarding this sentence.

First, Representative Marilyn Musgrave, the House sponsor of this proposed constitutional amendment has stated the following:

In summary, the first sentence of the FMA is designed to ensure that no governmental entity . . . at any level of government . . . shall have power to alter the definition of marriage so that it is other than a union of one man and one woman.

However, as Representative Bob Barr noted in his testimony before the Judiciary Committee, the scope of this first sentence is not limited to government actors. According to Representative Barr, this sentence ``appears to bind everyone in the United States to one definition of marriage.''

As a result, religions that marry couples of the same sex in religious ceremonies may be barred from doing so. This blurs the line between church and State and threatens the Free Exercise Clause of the First Amendment.

While I take the sponsor at her word that this is not her intention, the language again is ambiguous and must be clarified.

Secondly, it is uncertain whether arrangements such as civil unions and domestic partnerships could exist at all under this first sentence of the Federal Marriage Amendment.

Although Senator Allard and Representative Musgrave have stated that this sentence should not apply to civil unions or domestic partnerships, lawsuits have been brought in California and Pennsylvania that challenge domestic partnership laws based on the States' definition of marriage as being between a man and woman.

Dennis Archer, president of the American Bar Association, agrees that there is ambiguity and sent a letter to the Senate which States the following:

Despite the claims of the resolution's authors, it is unclear whether a State would be prohibited from passing laws permitting civil unions or domestic partnerships and providing State-conferred benefits to the couples involved.

Based on these lawsuits and the ABA's opinion, the language of this amendment must be more explicit regarding whether civil unions and domestic partnerships could exist.

The second sentence also is full of ambiguity and undefined terms.

For example, what does the term ``legal incidents thereof'' entail?

I asked Professor Phyllis Bossin, who is Chair of the American Bar Association Family Law Section and who testified before the Judiciary Committee on behalf of the American Bar Association, what this phrase meant.

She said there were hundreds of such rights and responsibilities and provided a list of dozens of them, including the following: the right to visit in a hospital; the ability to authorize medical treatment; family health insurance; the ability to consent to organ donation; eligibility for life or disability insurance; interstate succession, which is when a spouse dies without a will; the right to adopt; domestic violence laws; the right to seek compensation for wrongful death; and the ability to file joint petitions to immigrate.

I ask unanimous consent that Professor Bossin's list of selected legal incidents of marriage be submitted for the Record.

There being no objection, the material was ordered to be printed in the Record, as follows:

(1) The Federal Marriage Amendment (S.J. Res. 30) states the following: ``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.'' (a) What does the phrase ``legal incidents'' of marriage mean? Answer: ``Legal incidents of marriage'' are those rights that exist as a matter of law by virtue of the marital relationship itself. Among the hundreds of such rights and responsibilities, some are: (1) Family law: (a) Distribution of property upon divorce (particularly marital or community property); (b) Right to seek spousal support (alimony, maintenance); (c) Right to seek custody, visitation, parenting time; (d) Automatic presumption of parentage for children born during marriage; (e) Right to adopt; (f) Application of common law marriage (in states that recognize common law marriage; (g) Right to enter into prenuptial agreements; (h) Right to change name at time of marriage; (i) Domestic violence laws (including restraining orders and right to occupy home); (j) Duty to support spouse during marriage; (k) Liability for family expense; (l) Automatic coverage of spouse under most auto policies; (m) Right to seek divorce; (n) Right to annulment; and (o) Right to seek/receive child support. (2) Taxation: (a) Right to file jointly; (b) Tax rates; (c) Exemptions; and (d) Transfer of property between partners without tax consequences (gift or estate tax). (3) Health Care Law: (a) Surrogate decision making (authorizing treatment or withdrawal of treatment); (b) Access to medical records; (c) Right to visit in hospital; (d) Consent to organ donation; (e) Consent to autopsy; (f) Right to make funeral arrangements or dispose of remains; and (g) Family health insurance, including rights under COBRA. (4) Probate: (a) Intestate succession (rights to property when one spouse dies without a will); (b) Protection from being disinherited (right to challenge will or elect to take against the will); and (c) Preferential status to be named guardian or executor/administrator. (5) Torts: (a) Right to seek compensation for wrongful death and emotional distress; and (b) Right to seek compensation for loss of consortium. (6) Government Benefits and Programs: (a) Survivor benefits (Social Security); (b) Military benefits (survivor, housing, health care, PX); (c) Eligibility (and consideration of family income) for welfare benefits; (d) Disqualification from programs because of status of family member; and (e) Disclosure requirements for public officials (and their family members). (7) Private Sector benefits: Labor Law: (a) Family Health insurance, including rights under COBRA; (b) Eligibility for life insurance (such as group coverage for spouses); (c) Eligibility for disability insurance; (d) Right to take sick leave to care for seriously ill spouse; (e) Qualified Domestic Relations Orders (to divide pension benefits upon divorce between spouses); (f) Ability to roll over spouse's 401(K) or other retirement accounts and tax deferral on income distributed by deceased spouse; (g) Discrimination based on marital status; and (h) Eligibility for family memberships and discounts. (8) Real Estate: (a) Eligibility for tenancy by the entirety (traditionally only available to husbands and wives, a form of tenancy in which the joint ownership and right of survivorship generally cannot be eliminated as a result of one spouse transferring his or her interest to the other); (b) Need for spouse's approval for real estate transaction; (c) Dower rights; (d) Homestead rights; and (e) Rent control protections, where applicable. (9) Bankruptcy: (a) Joint filing. (10) Immigration: (a) Joint petitions to immigrate; and (b) Preferred status for spouses or family members (immigrating separately). (11) Criminal Law: (a) Privilege not to testify. (12) Miscellaneous: (a) Benefits and rules pertaining to family farm; (b) Right to request and obtain absentee ballot; (c) Consideration of family income for purpose of student aid eligibility; (d) Access to campus housing for married students; and (e) Economic disclosure requirements of public officials (and spouse and family members).

Sen. Richard J. Durbin

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Under the Federal Marriage Amendment, none of these legal incidents could be provided by Federal or State courts. For example, Professor Bossin cited a California trial court ruling that the State constitution requires a partner in a same-sex union be allowed to sue for the wrongful death of her partner. This proposed constitutional amendment would preclude such a finding by a court.

This amendment also would have prohibited Vermont from establishing civil unions, because a court had ruled that the law to create such relationships was constitutionally required.

These examples go far beyond the scope of ``marriage,'' but they do not tell even half of the story: Under the Federal Marriage Amendment, all State and Federal laws that provide any of these ``legal incidents of marriage'' could be struck down.

Senator Allard and others who support this amendment argue that it would allow State legislatures to provide the legal incidents of marriage through legislation, and that this amendment only constrains courts. However, a more critical analysis--which, again, should have been done at the committee level--demonstrates that this simply is not the case. For example, Professor Bossin has stated that the right to adopt is a legal incident of marriage. What if the Pennsylvania State legislature enacts a law to allow same-sex couples to adopt, and someone challenges the constitutionality of that law?

Under the second sentence of the proposed Federal Marriage Amendment, neither the State constitution nor Federal constitution shall be construed to require that the right to adopt--as a legal incident of marriage--be conferred upon a same-sex couple. Therefore, the court would have no grounds on which to uphold the constitutionality of this law, and the law would be struck down.

The possibility that even laws conferring the legal incidents of marriage could be invalidated raises serious questions about the intent and practical effects of the Federal Marriage Amendment.

This proposed constitutional amendment also undermines the democratic process regarding State constitutional amendments. In Massachusetts, the proposed State constitutional amendment that may be on the ballot in 2006 would define marriage as the union of one man and one woman, while simultaneously establishing civil unions for same-sex couples with ``entirely the same benefits, protections, rights, privileges, and obligations that are afforded to persons [who are] married.''

However, under the plain reading of this proposed Federal constitutional amendment, the Massachusetts State constitution cannot be construed to require the legal incidents of marriage to be conferred to same-sex couples. In other words, even if the people of Massachusetts voted to ratify this State constitutional amendment, the second part of that amendment--the part that establishes civil unions--would be void because of the Federal Marriage Amendment.

Furthermore, because of the first sentence of the Federal Marriage Amendment, under no circumstance could the people or the State legislature define marriage as other than between a man and a woman. How, then, does the Federal Marriage Amendment achieve its goal of advancing the spirit and principles of democracy.

Finally, I believe that words should not be added or deleted from our Constitution or from proposed constitutional amendments in a careless manner. Therefore, I would like to know why the original version of this proposal was modified by removing the reference to ``groups.'' The first version of the Federal Marriage Amend- ment, S.J. Res. 26, stated that marital status or the legal incidents thereof would not be conferred upon ``unmarried couples or groups.''

The current version states that marriage or the legal incidents thereof shall not be conferred upon ``any union other than the union of a man and a woman.'' It appears to me this change was made because we are still struggling in some parts of our Nation with the idea of polygamy. Professor Bossin agrees that the current version of the proposed constitutional amendment does not explicitly prohibit polygamy, because polygamists enter into the union of a man and a woman--they simply do it multiple times.

Was it in fact the intent of the sponsors to leave the door open for polygamy? If so, why should polygamous groups be treated differently from same-sex couples? If not, why was the reference to ``groups'' deleted from the original version?

In addition to expressing my serious procedural and substantive concerns, I would like to address some of the arguments in support of this proposed constitutional amendment.

First, I have heard many Senators argue that this constitutional amendment is necessary to provide the American people with a voice and to protect marriage from so-called activist judges. As I already have noted, this proposed constitutional amendment actually undermines democracy by removing the power of the people and their elected representatives to define marriage in their States, to provide for civil unions in their State constitutions, or even to enact legislation to provide the legal incidents of marriage.

I also disagree that democracy is pitted against so-called judicial activism. As University of Colorado constitutional law professor Richard Collins said, judicial activism is ``more of an insult than a philosophy.''

To argue that judicial activism is contrary to democracy is to suggest that a case like Brown v. Board of Education did not promote democracy in America. That was clearly an activist court, which took control of an issue that Congress and the President refused to address: discrimination in our public schools.

In Brown v. Board of Education, an activist Supreme Court said we are going to give equal opportunity to education across America. Doesn't that further democracy? When we celebrated the 50th anniversary of this decision earlier this year, did anyone argue that it didn't?

The same would be said of Griswold v. Connecticut, in which the Supreme Court said that families had the right to decide their own family planning and that the State of Connecticut could not dictate to them what family planning was allowed. It was a matter of privacy in family decisions. Was this an activist court in derogation of democracy that extended to these families and individuals their right to privacy?

In Loving v. Virginia, the Supreme Court said that a ban on interracial marriage was improper. Even though at the time, only 20 percent of the American people approved of such marriages, was that decision contrary to democracy or did it promote democracy?

Time and time again, judicial activism has promoted democracy. Of course, we must take care that the courts do not go too far. But to suggest that a constitutional amendment is necessary in this case simply because it was a court ruling--incidentally, by a court that consists of six Republican appointees and only one Democratic appointee--is controverted by the obvious legal precedent.

I also have heard many Senators argue that this constitutional amendment is necessary to safeguard the best environment for raising children. I agree that children raised by two parents are, in general, better off than children raised by a single parent. Many studies demonstrate this. But studies also demonstrate something else.

In 2002, the American Academy of Pediatrics--the largest pediatric organization in America--issued a report that Stated the following:

[T]he weight of evidence gathered during several decades using diverse samples and methodologies is persuasive in demonstrating that there is no systematic difference between gay and nongay parents in emotional health, parenting skills, and attitudes toward parenting. No data have pointed to any risk to children as a result of growing up in a family with one or more gay parents.

Dr. Ellen Perrin, a professor of pediatrics at Tufts-New England Medical Center, who is considered to be the Nation's foremost expert on children raised by same-sex couples, has studied same-sex couples and concluded the following:

What we know for sure is that children thrive better in families that include two loving, responsible, and committed parents. We also know that conscientious and nurturing adults, whether they are men or women, heterosexual or homosexual, can be excellent parents. We have a lot of research as well as clinical experience that provide evidence for this fact.

This evidence is based on our Nation's experience with gay adoption. Every State except Florida allows gay people to adopt.

Some States, including my home State of Illinois, allow same-sex couples to jointly petition for adoption. Many others allow for second parent adoptions, a legal procedure which allows a same-sex co-parent to adopt his or her partner's child. These States have recognized that same-sex couples can step into the lives of adopted children and provide loving and supportive families.

Under this proposed constitutional amendment, it would no longer be possible for State courts to interpret their constitutions to allow same-sex couples to adopt. Same-sex couples only would be allowed to adopt if explicitly permitted by State law--and as I have noted earlier, that State law could be challenged as unconstitutional and likely would be struck down.

Would that safeguard the best environment for these children? If this Senate is interested in the best environment for our children, we should fully fund No Child Left Behind, to provide all children with an educational opportunity and to fulfill the promise of Brown v. Board of Education.

We also should make college tuition more affordable, and we should provide families with affordable health care.

To conclude, I believe the definition of ``traditional marriage'' is an evolving one. One hundred and fifty years ago, ``traditional marriage'' in America did not include the ability of African American slaves to marry.

One hundred years ago, ``traditional marriage'' in some Western States did not include the ability of Asian Americans to marry. Just 40 years ago, ``traditional marriage'' in many States did not include the ability of African Americans to marry whites.

I understand that many supporters of this proposed amendment believe that the situation we face today is a fundamentally different one--that we must amend our Constitution to support the sanctity of marriage.

However, the sanctity of marriage is about the religious context of marriage, not the legality of it. We must be careful to separate the two.

Nothing in the Massachusetts Supreme Court ruling requires a church to conduct or to consecrate a same-sex union. On the other hand, if this proposed constitutional amendment were ratified, certain religious beliefs regarding the sanctity of marriage would be enshrined in our Constitution. This would go beyond the question of legality into sanctity, and I believe that we must maintain the bright line between the two that our Framers intended.

As one of my colleagues has said, ``I support the sanctity of marriage, but I also support the sanctity of the Constitution.'' Therefore, I urge my colleagues to reject this motion to proceed to a constitutional amendment that even the Republican leadership concedes is not ready for prime time.

Why else would they object to our unanimous consent request to have a vote on this resolution, without amendments?

The Republican leadership instead would prefer that we make it up as we go along, with one, if not two, amendments here on the Senate floor--amendments that could have been offered in a Constitution Subcommittee markup or in a full committee markup, had those not both been bypassed.

We are being asked to tinker with the words of our Nation's Constitution on the Senate floor, without even the benefit of committee analysis on the impact of these amendments. Unfortunately, this is not the first time we have considered a constitutional amendment on the Senate floor that was a work in progress, with the sponsors trying to make changes in the midst of a floor debate.

During the 106th Congress, sponsors of the victims' rights amendment tried to make modifications to that proposal during the floor debate, and ultimately, the motion to proceed to that constitutional amendment was withdrawn. I believe that is the course we should follow here today. We either should vote on this resolution without amendments or withdraw this motion to proceed. If this motion is not withdrawn, I urge my colleagues to vote against it.

The Senator from Nevada.

Sen. Harry Reid

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Mr. President, to try and work out some housekeeping aspects of what we are doing today, under the order that was entered last evening, we are to be here until 8 o'clock with the time evenly divided. I ask the Chair how much time remains for the minority and the majority.

The minority has 109 minutes, and the majority has 141 minutes.

Sen. Harry Reid

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The minority has 109 minutes?

Yes.

Sen. Harry Reid

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I say to my friend, the distinguished Senator from Texas, I would appreciate his making contact with the majority leader at the nearest possible time. We have people who have requested time on our side of about 140 minutes. That doesn't work under the 109 minutes. So it would be my thinking that maybe we may need a little more time tomorrow to continue. I know we have cloture to take place tomorrow. The majority leader wanted ample time to debate. The Senator from Pennsylvania was on the floor yesterday and was concerned that there was not enough talk on our side of the aisle. I think we have taken care of that today. But if maybe he could check with his leadership to find out if we could stop at a reasonable hour tonight and then maybe have a couple of hours in the morning evenly divided prior to the vote on cloture. Right now we are going to have trouble cramming all of our time in with what we have left.

The Senator from Texas.

Sen. John Cornyn

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Mr. President, I will be glad to do as the Democratic whip requests and check with the majority leader about the time arrangements.

Sen. Harry Reid

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If I may ask one other question of the Chair, I was off the floor when Senator Schumer asked consent that he and Senator Feinstein be recognized before 5 o'clock. For how much time?

For 15 minutes total.

Sen. Harry Reid

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So that is also something we have to deal with.

Under the previous order, the Senator from Texas is recognized for 30 minutes.

Sen. John Cornyn

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Mr. President, I am elated that we are beginning to see engagement on this important issue by our colleagues on the other side of the aisle. I am always impressed with how articulate and forceful an advocate our colleagues on the other side are, particularly the two Senators who have spoken so far this afternoon, Senator Feingold and Senator Durbin, with whom I have the privilege of serving on the Senate Judiciary Committee. There are some important answers to the questions he raised. There are good answers that resolve each and every objection that has been raised to the amendment.

First of all, I would like to respond to the rhetorical question both Senator Feingold and earlier Senator Boxer asked. They said: Why can't we let people live their own lives?

This amendment is not about making it impossible for people to live their own lives. Indeed, I agree we should let people live their own lives. Of course, we don't believe at the same time that they should be able to radically redefine the institution of marriage in the process.

From the very beginning of this debate--and I am grateful this has been a civil, respectful debate--we have made it absolutely clear the American people believe in at least two fundamental propositions when it comes to this issue. First and foremost, they believe in the essential dignity and worth of every human being. But at the same time--and this is not a mutually exclusive concept--they believe in the importance of traditional marriage as the most fundamental building block of a stable society and in the best interest of children. I and others on this side are here talking in support of this amendment and encouraging this debate because we believe very strongly that the positive case for traditional marriage must be made and we should not remain mere spectators on the sideline as judges in Massachusetts or anywhere else seek to amend the Constitution without the American people having a voice in the basic laws that govern our institutions or our lives. That is what this debate is all about.

I found it interesting. Again, I have to hand it to the Senator from Illinois. He is a skillful advocate. He must have been one heck of a lawyer practicing in private practice. I bet he won more than his fair share of his cases. But he speaks of our oath to support the Constitution. Certainly, I believe we all have taken an important oath to support the Constitution of laws of the United States. But I would like to direct my colleague's attention to provisions of the Constitution he may have overlooked in that broad generalization he made earlier about supporting the Constitution.

Indeed, one portion of the Constitution provides that ``all legislative powers herein granted shall be vested in a Congress of the United States . . .'' That is Article I, section 1. That is part of the Constitution we swore to uphold. And indeed, under that same Constitution, courts are given only judicial powers, not legislative powers. What we find ourselves having to do in this debate is talk about the abuse of that judicial power, to in essence become a superlegislature and dictate a radical redefinition of the most fundamental institution in our society, the American family. But when courts get it wrong--and indeed, this is part of the genius of our Founding Fathers--the Founding Fathers knew that experience, the passage of time, or perhaps even a runaway judiciary might make it necessary for us to invoke another important part of the Constitution that we are here invoking today. That is Article V of the Constitution.

Indeed, to the best of my count, there have been at least six times when the Congress has amended the Constitution in order to overrule an erroneous constitutional interpretation by the Federal courts. So we make no apologies whatsoever in invoking the entire Constitution and the entire process. We make no apology at not sitting back and letting judges dictate what the rules are that govern our society, our families, and future generations.

Senator Feingold and Senator Durbin were concerned about the fact that this amendment did not go through the Senate Judiciary Committee. Actually, I was a little bit confused about Senator Durbin's position. On the one hand, he said it did not go through the committee. On the other hand, he did concede the fact that there were four hearings of the Senate Judiciary Committee on this issue, starting last September, and the most recent of which was on June 22, 2004, when Governor Romney of Massachusetts appeared before our committee to talk about what he, as the Governor of that State, is doing to try to get a constitutional amendment to overrule the Massachusetts Supreme Court.

So we have had four hearings of the Senate Judiciary Committee. I know there have been at least two other committees of the Senate to consider this issue. It is important to put the concerns that were expressed by Senator Feingold and Senator Durbin in that context.

As far as the language we are debating is concerned, the so-called Allard amendment, that was introduced shortly before, I believe the day before the March 23 hearing we had this year on the Federal marriage amendment. Indeed, he had filed his original amendment--and this clarification was merely that--in November of 2003. So no Member of the Senate should be able to claim, in all fairness, of being surprised by this or being blindsided. Indeed, this is an issue that has been much discussed since actually before but at least since the time in November of 2003, when the Massachusetts Supreme Court first handed down its edict rewriting the Massachusetts Constitution to provide a mandate for same-sex marriage. Now, there has been some concern expressed--and I will point out that the so-called Smith amendment, to which the Senator from Nevada alluded, is the first sentence of the Allard amendment. So it is impossible for me to understand how they can claim to be surprised by an amendment that is just the first sentence of the two-sentence Allard amendment. Insofar as Senator Smith's position, whether he intends to offer it--and I cannot vouch for what Congress Daily says, but it seems to be pretty reliable--there is a lot of concern--and I am one on this side--that we stifle debate by not permitting a discussion of alternative amendments, especially one that makes up the first sentence of this two-sentence amendment on which we are having the motion to proceed.

So there is no surprise. There is no trickery, no attempt to blindside our colleagues on the other side of the aisle. This is about having a full, fair, and open debate. I think that is what we are doing.

I believe the Senator from Illinois expressed some concerns about the fact that no Federal court has yet mandated same-sex marriage under an interpretation of the U.S. Constitution, and that is true. The fact also is that there are at least four lawsuits currently pending attempting to do exactly that. Indeed, these are the latest lawsuits in a long line of legal opinions rendered by legal scholars, from Laurence Tribe and others, statements by Senator John Kerry and Senator Ted Kennedy as recently as 1996 that the Defense of Marriage Act is unconstitutional.

This language, which I will read from an excerpt out of the Goodridge opinion in Massachusetts--and this is really, to me, very disconcerting. The Massachusetts Supreme Court said:

But neither may the Government, under the guise of protecting ``traditional'' values, even if they be the traditional values of the majority, enshrine in law an invidious discrimination that our Constitution, ``as a charter of governance for every person properly within its reach,'' forbids.

In that excerpt, they have in effect defined traditional marriage as invidious discrimination. They went on to say:

For no rational reason, the marriage laws of the Commonwealth discriminate against a defined class; no amount of tinkering with language will eradicate that stain.

Here again, they are saying that traditional marriage is a stain on the Constitution, on the laws of the Commonwealth of Massachusetts, and no rational basis for those laws exists. This is language that I think the people across America would find very shocking. The fact is, they probably have not had the time or the means to try to find this language themselves. That is another reason it is important to have this debate. The Goodridge court goes on to say:

If, as the separate opinion suggests, the Legislature were to jettison the term ``marriage'' altogether, it might well be rational and permissible. What is not permissible is to retain the word for some and not for others, with all the distinctions thereby engendered.

Translated into English, what the court said is you cannot preserve traditional marriage for some adult couples but not for same-sex couples. But what you could do, in Massachusetts and elsewhere, is eliminate the term ``marriage'' altogether. Shocking. Shocking.

Now, for those who think that we have somehow on this side of the aisle dreamed up this crisis, this threat, this assault to the American family and traditional marriage, let me read just another paragraph. This, again, is the Goodridge decision out of the Massachusetts Supreme Court, mandating same-sex marriage--four judges:

The separate opinion maintains that, because same-sex civil marriage is not recognized under Federal law and the law of many States, there is a rational basis for the Commonwealth to distinguish same-sex from opposite-sex spouses. . . . We are well aware that current Federal law prohibits recognition by the Federal Government of the validity of same-sex marriages legally entered into in any State, and that it permits other States to refuse to recognize the validity of such marriages. The argument in the separate opinion that, apart from the legal process, society will still accord a lesser status to those marriages is irrelevant. Courts define what is constitutionally permissible, and the Massachusetts constitution does not permit this type of labeling. That there may remain personal residual prejudice against same-sex couples is a proposition all too familiar to other disadvantaged groups. That such prejudice exists is not a reason to insist on less than the Constitution requires.

That is a direct critique and criticism of the Federal Defense of Marriage Act passed in 1996 by a vote of 85 Senators in this body on a bipartisan basis. If that isn't a direct signal that the next law under attack is the Federal Defense of Marriage Act, I don't know what is. In fact, we know that at least four cases are presently pending seeking to accomplish just that.

Now, there have been those who have expressed concerns, saying why in the world would we want to pass a constitutional amendment until a Federal court actually strikes down traditional marriage, even though the Supreme Court has, in Lawrence v. Texas, provided the rationale to do so, and that rationale has been adopted by the Massachusetts Supreme Court, interpreting their Constitution; why in the world do we want to amend the U.S. Constitution at this time?

I might interject that I bet old John Adams, who was the principal author in 1780 of that Massachusetts Constitution, never dreamed that four judges on the Massachusetts Supreme Court would so contort the meaning of that document as to create a right to same-sex marriage. That is one reason they didn't talk about it explicitly, either in the State constitution or in the Federal Constitution.

But in terms of why we shouldn't wait to address this matter, I point out that Massachusetts is a good example of why. If we wait until it is too late, it may well take years for the American people, through the amendment process, to correct that error. In the meantime, we know that same-sex marriages will occur as they currently occur in Massachusetts, and those people will not just stay in one State but will move to other parts of the country to seek to have those marriages validated under the laws of their own State. But we do have an example of when States have chosen, based on a preliminary ruling suggesting same-sex marriage, to amend their constitution. So it is not unprecedented by any means.

As a matter of fact, in 1993 and 1996, Hawaii and Alaska courts issued preliminary rulings suggesting that same-sex marriage may be constitutionally required, and it was in 1998 that Hawaii and Alaska preemptively amended their constitutions before the highest court in those States went as far as the Massachusetts Supreme Court did in the Goodridge case. Indeed, in 2000, Nebraska and Nevada preemptively amended their State constitutions before suits were even filed.

I might add, there have been suits filed in Nevada seeking to force recognition of polygamist marriages under the rationale in Lawrence v. Texas and Goodridge, and, indeed, in Nebraska, there has been a Federal constitutional challenge to that State Constitution defense of marriage provision under this rationale of the Lawrence case seeking to have the Federal Government tell Nebraska it cannot recognize traditional marriage.

I want to move to the Allard amendment, which is two sentences. The first sentence basically says marriage is between a man and a woman. The second sentence seeks to preserve the right of the States to deal with the question of civil unions and to reserve that right to them as opposed to having a court mandate it.

I was a little baffled as to why the Senator from Illinois expressed some puzzlement at the meaning of that second sentence when, indeed, during one of the hearings we had in the Senate Judiciary Committee, he asked Professor Cass Sustein of the University of Chicago Law School:

Under this language, please explain whether a State legislature could pass a law to establish civil unions.

Professor Sustein responded:

I believe it could because no State constitution would be affected.

We have heard a number of objections raised that this is a State issue. We have seen charts being trotted out containing the quotations of various public figures. At one time, the Vice President, in a different context, said this should be a matter reserved to the States. And there was a quote from the Vice President's wife, Lynne Cheney, expressing her views, and I certainly respect both of them and their right to express their views. But the fact is this cannot be contained to one State. It is interesting to hear folks on the other side of the aisle make States rights arguments to folks on this side of the aisle. The shoe is usually on the other foot because they are usually the ones seeking to have the Federal Government tell all the States what they should be doing rather than let each State--what Louis Brandeis once called the laboratories of democracy--work out these various policies.

The truth is, we are not only talking about whether a State should embrace a property tax or a sales tax or perhaps adopt an income tax. In my State, we do not have an income tax, and we are proud of it. We do not want an income tax in the State of Texas. Each State has a right to choose its own policies that way.

I firmly adhere to that and believe the States rights argument is absolutely true. But to suggest we can somehow, as a practical matter, contain this revolution, this radical social experiment mandated by the Massachusetts Supreme Court, in one State denies reality. The fact is people have, indeed, married, they have moved to 46 States and now we have at least 10, maybe more, lawsuits as part of a national litigation strategy to force other States to recognize the validity of that marriage. You would have to be blind to that effort to stand up here and say this is a State matter because it is not.

We know based on the legal arguments of scholars, based on the comments of Senator Kerry back when the Defense of Marriage Act was passed in 1996--something he did not vote for, by the way, and he now says he supports marriage as only between a man and a woman, but then he says he does not support a constitutional amendment either. He was not for the statute, he is not for a constitutional amendment, but he still claims to be in favor of traditional marriage. I don't know if, again, this is one of the nuances, quite frankly, that evades me of his reasoning process, but you simply cannot have it both ways.

Indeed, for reasons we have talked about already at great length, when as a matter of Federal constitutional interpretation by a court, same-sex marriages are required, no State constitution, no State law, nobody has a choice in that matter because our Federal Constitution, indeed, speaks for the entire Nation and not one State.

So no matter how much well-intentioned individuals may wish we can avoid this debate and say this is a local issue, this is a State issue, we do not need to be talking about it, that defies reality.

I know Senator Durbin had suggested at the close of his comments that this is all an attempt to change the subject; that somehow we do not want to debate what is happening in Iraq, what is happening in the economy. I think the American people certainly know we have debated those issues, and we will continue to debate those issues. Frankly, I am proud of what we have been able to accomplish in Iraq under a joint resolution passed overwhelmingly by this body authorizing the President to remove Saddam Hussein from power in that country, something that had been the policy of this Congress since at least 1998 when the Democrats advocated, and we all agreed--or at least those here at that time--in the Iraq Liberation Act. Regime change was a policy of the American Government under Democrat control, under a Democrat, President Bill Clinton. But it took the present President, George W. Bush, I believe, to follow through after Saddam thumbed his nose at 17 resolutions of the United Nations requiring him to open his nation up to weapons inspectors.

You want to talk about the economy, we are glad to talk about the economy. The economy is roaring back, thanks again to the policies advocated by this side of the aisle and led by President Bush who created more than 1.5 million new jobs this year alone. Indeed, home ownership is at an all-time high. The economy is roaring back, so we are glad to talk about that.

Finally, I have heard Senator Durbin say it before and it makes you chuckle when you hear it--well, it is kind of funny. He says he believes no constitutional amendment should be debated--I cannot remember if he said ``debated,'' ``filed'' or ``passed''--during an election year. We did not choose the timing of the Massachusetts Supreme Court's decision. I suggest what we are arguing for is a debate about the most fundamental institution in our society, and that is not a frivolous matter. That is an important matter.

Indeed, there are some, including this Senator, who believe it is the most important matter. Of course, those who have made the States rights arguments, all they need to do is read that Constitution once again, that Senator Durbin spoke eloquently about, to recognize not only does it include a constitutional amendment process, but after two-thirds of the Senate and after two-thirds of the House have passed the resolution, three-quarters of the States have to ratify the amendment. So those who want to stand in this Chamber and say, We believe in States rights, we believe this ought to be handled by the States, the States retain a voice, a critical voice, a crucial, an essential voice in this process through the ratification process.

I believe this is an important issue. It cannot be solved at the local level. It is a national issue requiring a national response. It is not premature because to act only after a Federal court mandates same-sex marriage on a national basis under the guise of interpreting the U.S. Constitution, it will take too long for the people to speak and to overturn that decision and we will see something akin to what we see now happening in Massachusetts, despite the fact the people of Massachusetts have, through their representatives, at least initially, chosen to try to overrule that decision by a constitutional amendment.

The problem is that constitutional amendment cannot be effective until 2006. So what happens in the interim? What happens in the interim is what we see happening today, because of a dictate from the bench by four judges which now we see has a national impact.

I reserve the remainder of our time and yield the floor.

Sen. Lincoln D. Chafee

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The Democratic whip.

Sen. Harry Reid

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Under an order previously entered, Senator Lautenberg is to be recognized for 15 minutes. I ask unanimous consent that Senator Mikulski--she has been waiting patiently. She had some information that she was supposed to have come 40 minutes ago so she is waiting--have 10 minutes immediately following Senator Lautenberg. We have been going back and forth, but some of the speeches have been much longer than the others.

Sen. John Cornyn

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We have been going back and forth, and I certainly want to accommodate every Senator but I also know the Senator from Pennsylvania has been here as well.

Sen. Harry Reid

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If I could ask through the Chair, how long does the Senator from Pennsylvania wish to speak?

Sen. Richard J. Santorum

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If Senator Lautenberg is speaking 15 minutes, I will speak for 10 or 15 minutes, if we want to go back and forth.

Sen. Harry Reid

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Maybe we can try this: Following the statement of the Senator from New Jersey, the Senator from Pennsylvania would be recognized for 15 minutes and then Senator Mikulski for 10 minutes. We already have an order in effect that Schumer and Feinstein are to be recognized for 15 minutes total. So they would use their time immediately after Senator Mikulski completes her statement. I ask unanimous consent that be the case.

Sen. John Cornyn

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I have no problem with that as long as we continue to try to observe the back and forth so each side has an opportunity to speak.

Sen. Harry Reid

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We would not go back and forth from Mikulski to Feinstein because there is already an order entered regarding Feinstein and Schumer, but they only total 15 minutes.

Sen. John Cornyn

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With that exception, I have no objection.

Without objection, it is so ordered.

The Senator from New Jersey.

Sen. Frank R. Lautenberg

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Mr. President, I rise in opposition to this proposed amendment to the Constitution as, by the way, has Vice President Cheney and Mrs. Cheney. They are opposed. They are not taken by surprise on a moral issue. These are sophisticated people who understand government and who have a role to play. They are opposed to this amendment, and I think there is very good reason for that.

As Senators, many of us are from different backgrounds but we do all share a solemn oath to uphold the spirit and the letter of the American Constitution. I would like to uphold the value and the commitment that the Constitution makes to all of us to protect our rights.

I have to raise a question, and that is, what is it that makes this the most important business we have in this body right now? Is this the only thing that we want to talk about for the American people to hear from the Senate? Or would a subject such as the killings that are taking place in Iraq, such as it was announced that three more were killed yesterday, be more important, and that we are stretching to have enough reserves to fight the battle and protect our troops in the best way possible but we need to have enough of them? Do the American people care about that?

Are the American people saying the issue that interests us most is whether a homosexual couple can marry, even though it is taken care of in many States and will continue to be? Are we saying, no, the war is not that important, we are going to lay it aside while notices go out to families, very often by a knock on the door that is an ominous calling that says your son, your daughter has been killed, your son, your daughter, has been seriously wounded?

No, we do not want to discuss that. We have to discuss gay marriage, and see whether we can change the Constitution, the Constitution which was designed to expand rights at any time that we saw a default in our system, whether it had to do with giving the vote to women or the vote to 18-year-olds or other expansions of rights.

No, we want to do the moral thing. We want to decide who is in charge of the morality of this country. The people are in charge of the morality of this country, not the people who are making speeches today.

When I think about what affects the American people, how about the people who work 35 or 40 years in a company and see their pensions disappear in front of their eyes because of the deceptive leadership of companies or falsification of records? No, no, the American people do not want to worry about that. They want to talk about this amendment. That is what they care about.

My phone is--no, it is not crowded. In fact, I do not get many calls at all about the morality of the constitutional amendment that has been proposed and, by the way, creates a constitutional convention so we can throw anything that we want on top of this.

No, the American people are not concerned about whether they can pay their bills or whether drug prices are going through the roof that they cannot afford or whether we can give an education to the children who want to learn in Head Start but do not know how. No, those are not the issues we want to talk about. We want to talk about whether a gay couple can engage in a relationship or a marriage.

Let the States of New Jersey, Massachusetts, and the other States that choose to give that right to give those citizens the same standing that other citizens within those States have. No, we do not want to discuss that. We want to discuss this issue. We want to discuss what is morally correct. What is morally correct is what the people want, and we ought to let them hear on this floor that we understand the issues that concern them.

I get calls from families who have people overseas, whether in Reserve units or regular enlistments, and they ask, what can we do to hasten my son's return? I want to see his face.

Go to Walter Reed hospital, as I and many others have done. I went there a couple of weeks ago after we buried a young soldier from New Jersey in Arlington Cemetery. Senator Corzine and I, my colleague in the Senate, decided we should not only pay our respects to the dead but also our respects to the wounded, and we went to Walter Reed Hospital. In one of those rooms there was a young man sitting with his wife and he was staring blankly at the floor. It was not his lack of interest. It was his lack of sight. He could not see anything.

He said: I will not be able to see my 28-month-old daughter but I still want to hold her. I still miss her. I still love her.

We do not want to discuss those things. We want to discuss what is moral and change the Constitution to impose our value of morality on all of America. It is wrong. The proposed constitutional amendment before us would etch the markings of intolerance, discrimination, and bigotry into a document that is based on the enduring truth that everyone is created equal.

The constitutional amendment that is being offered today would do much more than ban same-sex marriages. It would also ban civil unions, saying they cannot really live together and share the values of our society, or domestic partnership laws, even if those relationships are specifically recognized by their fellow residents in their States by their State legislatures and signed by the Governor.

If enacted, I believe this amendment would create a permanent class of second-class citizens with fewer rights than the rest of the population.

In fairness and in good conscience, I will not support this mean-spirited proposal. Our Constitution is about expanding individual rights, not taking them away. The last thing the Constitution should do is mandate conditions for some people and another set of rights for a different group.

What is especially strange in this debate is we have the Republican majority looking to take away a State's right to determine the rules for marriage within its borders. I always thought the Republicans were States righters. I thought they always wanted to give power back to the States. That is what I thought they wanted to do.

In my home State of New Jersey, our State legislature, the duly elected representatives of the people of New Jersey, drafted, debated, and enacted a domestic partnership law. We ought to respect the State law, not stamp it out.

The State of New Jersey decided to establish a domestic partnership law. The Federal Government has no business telling us we cannot do it. It doesn't violate current Federal law and we should let that stand. States should continue to have the ability to decide whether same-sex couples should have the inheritance rights or pension rights or whatever other legal rights should be respected in a domestic partnership.

Domestic relations law, the law that governs family issues, has always been the domain of the State, not Federal law. The ability to decide matters of marriage has been with the States since the founding of the Republic. But now, those who typically advocate a smaller Federal Government--shrink government down to size, get rid of those people who are making their livings there, forget whether they contribute to the general well-being, we want to shrink Federal Government--now they are seeking to amend the Constitution to take power away from the States and put it in the hands of the Government so we can have people running around, morality police, making sure this couple isn't engaged in a relationship that would be prohibited by Federal law.

Once the Federal Government starts regulating marriage, you have to ask yourself what is next? Ten years from now what is going to stop Congress from prohibiting people getting married unless they pledge to have children? What is to stop this body from outlawing divorce or second marriages?

You have to ask yourself what is it that is driving this agenda? Why, in this election year, are we debating an amendment to the Constitution designed to restrict the rights of gay Americans? It is clearly not a legitimate legislative debate, as there are not near enough votes to pass this amendment. But that doesn't stop them from wanting to use the time to confuse the American public about what is important, what is important to the public which is worried about their jobs and the war and their kids. No. We want to discuss gay marriage.

I have come to an unfortunate conclusion about why we are doing this amendment. This is gay bashing, plain and simple. That is what this is about. This amendment is picking on productive members of our society, people who pay taxes, want to raise their families and contribute to their communities, as everyone else does. They want to be like everyone else in their conformity to law. This amendment attempts to divide America and it is shameful. It should not be that way.

When we see things that are shameful we should not be too spineless to respond. Look back on world history. There are notorious examples of those who seek political advantage by picking on segments of society. It is a sad day when we see this dynamic happening here in the United States.

I urge my colleagues, reject this divisive amendment. Let's get on with the regular business that affects people's everyday lives. We can talk about this after the first of the year. It is not that urgent.

I yield the floor.

The Senator from Pennsylvania.

Sen. Richard J. Santorum

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If you support a mother and father for every child, you are a hater. If you believe men and women for 5,000 years have bonded together in marriage, you are a gay basher. Marriage is hate. Marriage is a stain. Marriage is an evil thing.

That is what we hear. People who stand for traditional marriage are haters, they are bashers, they are mean spirited, they are intolerant. They are all these awful things. That would be the only reason we would come here is because we hate. It is because we are intolerant. It is because we want to hold people down, restrict their rights. That would be the only reason anyone could possibly come forward and argue that children need moms and dads.

Or is it the only reason? Isn't there a whole body of evidence out there, of 5,000 years of civilization, that shows as plain as this piece of paper I am holding up that children need mothers and fathers? That the basic unit of any successful society is moms and dads coming together to raise children?

Imagine what our Founders would say today, in a Constitutional Convention--which, by the way I suggest to the Senator from New Jersey this bill does not call for--that anyone who would come forward and suggest that holding marriage should be between a man and a woman is doing something that is hateful, something that is against the basic principles of equality within our Constitution.

The Senator from New Jersey said there is no room for debate on morality here on the floor of the Senate. It is up to the people to make this decision. I wish it were up to the people to make this decision. The Senator from New Jersey knows the people are not going to be able to make this decision. In fact, the people are being frozen out of this decision. They are being frozen out by State courts--I would argue, soon to be Federal courts. These are people who are not elected, people who are not accountable, people who are not democratic, but they are elitists dictating what they believe their world view should be for America.

The only way for the people to decide, I suggest to the Senator from New Jersey, is exactly the process we have before us. It is the only way for the people to decide. Leave it to the people. It is a great mantra. Leave it to the States. What those who suggest that we leave it to the States are suggesting is to leave it to the State courts. That has always been the secret weapon of those who want to change our culture and change our laws without going through the process most of us think we have to go through to do that.

See, most people who are listening to my voice right now think that to change a law in America you actually have to get popular support for it, that you have to go before your legislature and petition your government. But, no, the Senator from New Jersey figured out a long time ago, as have many others who agree with his position, that the way you accomplish these social transformations that fight against this evil, hateful culture that believes in moms and dads and children being raised in stable families--the way you do that is you get people on these courts who can then dictate to the rest of us how we now shall live.

You have that supported and orchestrated through a variety of different ways, from colleges and universities to the media. Anyone who speaks out against this political thought is a hater. Anyone who speaks out for traditional truth, for truth that has been established in Biblical times, through natural law and a whole host of other cultures, in fact every civilization in the history of man--if you stand for that truth that was accepted by all for centuries, for millennia, you are a hater. You are someone who wants to oppress people.

I am willing to come here and debate the substance of what we are doing. It is an important debate: What will happen to marriage if we do nothing? That is an important debate. We should have that debate. But I am not suggesting the Senator from New Jersey or anybody else who comes here to defend a change in traditional marriage is doing so because they hate mothers and fathers, because they hate traditional marriage. I do not ascribe evil thoughts to them, nor should they to us.

There is the incredible intolerance of those who argue for tolerance.

You see, tolerance means you must agree with me and how I feel about an issue, and if you do not, you are intolerant. Someone who supports traditional values is by definition intolerant because they do not want me to be able to do whatever I want to do.

I never thought that was the definition of tolerance. I didn't think tolerance meant any individual should be able to do everything they want irrespective of the consequence to anybody else. I will check the definition. I don't think that is what tolerance means.

When we change the definition of something so central to the culture of any society--and that is what marriage is and what family is--it has profound consequences on children and thereby on the next generation.

I am not just making this up. It is real. It is so real it has been a given forever. I imagine this has been a given forever. All of a sudden, now something that is a given, that is a truth of every major religion I am aware of, from natural law to philosophy, all of this given truth is now seen as pure animus, hatred. But it is not.

This constitutional amendment is based on a sincere caring for children, for family, for the future of this country.

The Senator from New Jersey suggested that conservatives should be for States rights and that we want to shrink government. Let me assure you, if we do not stop the change of the definition of traditional marriage, if we let marriage be just a social convention without meaning or without significance, we will shrink government because we have seen where marriage becomes out of favor--whether it is the Netherlands or Scandinavia, which I will talk about in a moment, or whether it is subcultures within this country in which marriage is seen as an out-of-date convention. In those cultures, children suffer. In those cultures, people do not get married. In those cultures, children are born out of wedlock and do not see their fathers and in many cases their mothers. Society dies.

You can say I am a hater, but I will argue that I am a lover. I am a lover of traditional family and children who deserve the right to have a mother and a father. Don't we want that? Is there anyone in the U.S. Senate who will stand up and argue that children don't have a right to a mom and a dad; that our society shouldn't be saying to all people that moms and dads are the best, an ideal, and what we should strive for? When we say that marriage is not that, then we say that children don't deserve that. Let me assure you they will not get that.

I will give you a couple of examples. The most dramatic is in the Netherlands. Senators Cornyn and Brownback and others have talked about it. But this is a country where marriage was a very stable aspect of their culture. They had the highest marriage rate and the lowest divorce rate in Europe. They had the lowest out-of-wedlock birth rate in Europe--until what? Until a social movement began to change the definition of marriage. You can say a lot of other things happened in Europe during that time, true. But the Netherlands has always been, interestingly enough, the country that was able to dam the tide, stem the tide and preserve the traditional family until they began the process of changing the definition of marriage to expand it.

Look at what happened over that period of time: A straight and rapid descent in the number of people getting married and, not surprisingly, a rapid assent in the children being born out of wedlock.

Is this what is best for children? Is this an argument of a hater? Is this an argument of someone who is intolerant or is this an argument of someone who believes that children deserve what is the ideal for our society? What has happened in those countries that have allowed people of the same sex to get married? Sweden allowed same-sex unions. There are 8 million people in Sweden. How many same-sex unions? There were 749. Is it worth it that now 60 percent of first-born children born in Sweden are born out of wedlock? Is this worth it, 749?

By the way, the breakup rate of those marriages is two to three times what it is in traditional marriage. Is it worth it?

I ask kids today what marriage is about. For the longest time, when I asked them what marriage is about, they always answered it is about the love of two people. Look at what Hollywood said about marriage. If you look at what leaders in this country say about marriage, maybe that is what we think it is. You look at the pop stars and celebrities, and that is certainly what it is today. It certainly isn't about families and kids.

What are we telling our children? Is marriage just about affirming the love of two people? I can assure you that is the motive behind it. It is about affirmation of lifestyle, it is about affirmation of desires. Marriage and family is more than that. Principally, marriage and family has been held up not as an affirmation to make you feel good about who you are or who you love, but it is about the selfless giving for the purpose of continuing. It is about selflessness, not selfishness. It is not about me all the time. This is a society that is so wrapped up in ``me.'' Make me feel good, make me affirmed--me, me, me. What about kids? What about the future? The greatest generation of America was the greatest generation of America. Why? Because they were giving of themselves for something beyond themselves.

The greatest generation that started the baby boom was a generation that understood what family was all about.

A young man walked up to me a year and a half ago in Wichita, KS, and handed me this bracelet, and I have worn it every day since. He said this bracelet describes what family is. That is what it is--f-a-m-i-l-y. It says it means family. Forget about me; I love you.

Is that the kind of family we are debating today?

There is a reason we are here. It is not because we hate anybody. It is not because we don't respect anybody. It is not because we don't dignify their worth and value as a person. It is because there is a group of people who are trying to change the definition that is central to the future of this country.

That is why we are here. We didn't pick this fight. We didn't start this battle. They went to the courts, not to the people. They went to the few elitists, and on of the most elitist liberal places in the world, Boston, MA, and said, you, the elite of the east coast, Northeastern United States of America, you take your isolated values and then sweep them across this country. They didn't go to Omaha, NE. They didn't go to Peoria, IL. They go to San Francisco, to Seattle, to Boston, and to New York, and they impose the values across America.

That is not democracy. That is not allowing the people of Baltimore, the people of Reno, the people of San Antonio, the people of Providence, the people of Pittsburgh to speak.

We have a right to speak. The only way we can do that is through the process we have before us, article V of the Constitution, which says we have a right to amend the Constitution when things go too far. And things are going too far. I ask my colleagues to give the people a chance to speak.

I yield the floor.

The Democratic whip.

Sen. Harry Reid

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The next Democrat speakers in order following the statements of Senators Schumer and Feinstein would be Senator Kennedy for 15 minutes, followed by Senator Dayton for 20 minutes. I ask consent that be in order on this side of the aisle.

Without objection, it is so ordered.

The Senator from Maryland.

Sen. Barbara A. Mikulski

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Mr. President, I wish to speak on the Federal marriage amendment and also on the motion to proceed.

Today I rise to talk about the Federal marriage amendment. I first will talk about timing and then about content. First, I will talk about timing. Marriage is not under a threat. It is not in any clear, imminent danger of being destroyed. What is in clear and imminent danger and what we have heard is under threat of possible attack is the homeland.

There are other issues families are facing that are eroding their very stability such as their economic situation and the cost of health care. If we really want to stand up and protect America and protect families, we would be focusing on these and other issues. This discussion is ill-conceived, ill-timed, and unnecessary.

Last week, Homeland Secretary Tom Ridge announced that al-Qaida is planning a large-scale attack on the United States of America. What should we be doing? We should be working on homeland security. We have a homeland security appropriations bill pending, waiting to come before the Senate. That is what we should be talking about today, not this amendment.

This is why I will vote against the motion to proceed as a protest that we are not meeting the compelling needs of the Nation. We need to show a deterrent strategy, to send a message to the terrorists: Do not even think you can affect our elections because we would be united across the aisle to stand up and vote for legislation to protect the homeland. To protect our ports, our cities, our transportation, our schools, and, yes, those moms and dads and children we have been hearing about all day long. Instead, we are debating the motion to proceed to a constitutional amendment. America is united in the war against terrorism. We should not be divided in a cultural war.

Let's talk about another war, the war in Iraq. Right now, we have men and women returning with broken bodies, some who have lost their limbs. One cannot go to ward 57 at Walter Reed, the way I have, and see the young men and women who have lost an arm, lost a leg, lost hope, wondering if anybody is ever going to love them again, if they are ever going to be able to work again, and not want to do everything possible to help these young Americans.

That is why I am working now on a bipartisan basis with my colleague, Senator Kit Bond, on the VA/HUD appropriations bill so we can help our veterans, so we can have a prosthetic initiative to give them a ``smart'' arm with the best technology, to give them a smart leg so they can run the race for life and maybe give them back a life. That is what we should be focusing on, working on a bipartisan basis, solving the problems that confront the Nation.

This amendment is not about policy; it is about politics. It is not about strengthening families; it is about helping the other party get elected. If we were serious about helping families, we would be focusing on jobs, on health care, on the rising costs of college tuition. This proposed amendment does not help families. Why? It does not create one new job or keep one in this country. It does not pay for one bottle of prescription drugs that seniors so desperately need. This amendment does not send one child to college. No, this amendment does not help a family pay for health care for a sick child. What it does do is divide. Americans are tired of divisive debates. This amendment is just simply a distraction.

On the timing, I wish we would put it aside and address our Nation's real needs.

I also want to talk about the content should we move to proceed. I will vote against this amendment because it is unneeded and unnecessary. Congress in 1996 spoke on this issue. They passed something called the Defense of Marriage Act. What this legislation did was define marriage as between a man and a woman. It also allows each State to determine for itself what it considers marriage under its own State law, leaving the concept of federalism intact.

Maryland, my own home State, also has a law on the books that defines marriage as between a man and a woman. So when you look at Maryland law and you look at Federal law, this constitutional amendment is unneeded.

We talk about what the courts are doing. Well, I don't quite see that as the same level of threat as terrorism, or the loss of a job on a slow boat to China or a fast track to Mexico.

Some of my constituents are worried that churches will be forced to perform gay marriages. Under separation of church and State, no law--not a Federal law, not a State law--can force a church, temple, mosque, or any religious institution to marry a same-sex couple. That will be up to their religious determination. Why? Because, again, under separation of church and State, we cannot dictate to a church what to do. Because of this constitutional commitment there can be no Federal law, for example, even under equal protection that could force the Catholic Church to ordain women. Our First Amendment provides this protection to religious institutions.

And so I reiterate that this amendment is unnecessary.

I also oppose this amendment because I take amending the Constitution very seriously. In our entire history, over 200 years, we have only amended the Constitution 17 times since the Bill of Rights. We have amended that Constitution to extend rights, not to restrict them. We amended the Constitution to end slavery. We amended the Constitution to give women the right to vote. We amended the Constitution to give equal protection in law to all citizens. We amended the Constitution to give citizens over age 18 the right to vote. We have never used the Constitution as a weapon or as a social policy tool against a minority of the population.

I am concerned that this amendment would condone discrimination. We should not embark on that path today. It is wrong. It undermines the integrity of the Constitution.

When the roll is called on the motion to proceed, I will oppose that motion. There are far more pressing needs for American families and those children we love.

When we amend the Constitution, it should be to expand hope and opportunity, not to shrink it.

I yield the floor.

The Senator from California.

Sen. Dianne Feinstein

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Mr. President, I believe Senator Schumer and I have 15 minutes between us by unanimous consent agreement, and I ask that I be alerted when 8 minutes has passed.

Ten years ago, I introduced an amendment to the crime bill which banned the manufacture and sale of semiautomatic military-style assault weapons. Senator Schumer, then a Member of the House, a member of the Judiciary Committee, introduced the same amendment in the Judiciary Committee. We were both successful. It passed the Senate, passed the House, was signed into law by President Clinton.

Over the past 10 years, gun traces to semiautomatic military-style assault weapons have decreased by two-thirds. The ban has worked. But 2 months from today, the Federal ban will expire.

Once again, new guns such as the Tec-DC9 will flood our streets. If you don't know what a Tec-DC9 is, I am going to show you. This is Gian Luigi Ferri, who walked into 101 California Street and killed six people, wounding eight. And this is the Tec-DC-9 he was carrying with a 30-round clip. He had 250 rounds in additional clips with him. He is dead here, shot on the floor, but not until after he had either killed or wounded 14 people. The ban will expire despite overwhelming public support to renew it.

Seventy-one percent of all Americans support renewing the ban. So do 64 percent of people in homes with a gun. The ban is going to expire despite overwhelming support from law enforcement and civic organizations. As you can see, nearly every major law enforcement and civic organization in our country supports renewal: the Fraternal Order of Police, the Chiefs of Police, the United States Conference of Mayors, National Association of Counties, and on and on.

The ban will expire despite the stated public support of President George W. Bush and Attorney General John Ashcroft. As you can see from this letter, the administration has reiterated its official support for renewing the ban time and time again. From the Department of Justice:

As the President has stated on several occasions, he supports the reauthorization of the current ban . . .

And the ban will expire despite the support of a majority of Senators, 52. Despite all of this, it looks more and more likely that the National Rifle Association will win. The ban will expire, and the American people will once again be made less safe.

Although President Bush has said he supports the ban, the White House has refused to lift a finger to help us pass the renewal. They are instead playing political hot potato with the Republican leaders in Congress.

The Hill newspaper, on May 12, said that ``an aide to [the Speaker] has said privately that if the President pushes for it, the ban will probably be reauthorized. But if he doesn't, the chances . . . are remote.''

The Boston Globe reports that a White House spokesman said ``Bush still supports the ban but is waiting for the House to act.''

So the House will act only if the President asks them, and the President will act only if the House passes it. It is a classic catch-22.

One month ago, June 14, three former Presidents wrote to President Bush. Presidents Ford, Carter, and Clinton took the extraordinary step of writing a joint letter to President Bush asking him to work to renew the ban and offering their assistance to do so. Let me read just part of it:

We are pleased that you support reauthorization of the . . . Assault Weapons Act, which is scheduled to expire in September. Each of us, along with President Reagan, worked hard in support of this vital law, and it would be a grave mistake if it were allowed to sunset.

It goes on and expresses what this law means. I could not agree more. We cannot go back to those days. We know these guns are used by gangs, by criminals, by grievance killers, by troubled children to kill their schoolmates. We also know from al-Qaida training manuals that al-Qaida has recommended that its members travel to the United States to buy assault weapons at gun shows. Why? Because it is so easy to do so.

As the threat of terrorism around the world increases, how can we let the ban expire and make it that much easier for terrorists to arm themselves with military-style weaponry? And make no mistake, gun manufacturers and sellers are keeping a close watch.

In mid-April, Italian customs seized more than 8,000 AK-47 assault rifles on their way from the Romanian Port of Constanta to New York and then to Georgia. These guns had a value of more than $7 million.

Of course, shipping assembled AK-47s would be illegal under the ban and under a 1989 Executive order of the first President Bush that banned certain guns from importation. But according to ATF, importing these guns so they can be disassembled, sold for parts, and then reassembled would not be illegal, and now purchasers will be allowed to reassemble these guns into their banned form. This shipment was not an isolated example.

Here is an advertisement from Armalite, a company that makes post-ban rifles. As we can see from this advertisement, they are offering a coupon for a free flash suppressor for anyone who buys one of these guns so that on September 14, once the ban is expired, the gun can be modified to its pre-ban configuration. What do you need a flash suppressor for? If you have a flash suppressor on a gun and a 30-round clip in it and you are shooting at night at the police or at neighbors, you can't see where the gun flashes. The flash is suppressed. So if you are a criminal, you may need one. If you are a legitimate citizen, you don't.

This is the kind of thing we can expect, just 2 months from now: Companies gearing up to once again produce the deadly assault weapons, the high-capacity clips which are now banned, clips, drums, or strips of more than 10 bullets, and dangerous accessories we worked so hard to stop 10 years ago.

I hope that, before September 13, the President and the Congress can find the courage to stand up to the NRA, to listen to law enforcement all across the Nation who know that to ban these guns makes sense and saves lives.

Listen to the studies that show that crime with assault weapons of all kinds has decreased as much as 66 percent. The bottom line is that everyone knows this ban should remain law, but time is running out. We have 14 legislative days. Will the House of Representatives step up to the plate and find an opportunity to give the House an opportunity to vote to renew the military-style assault weapons legislation?

I ask unanimous consent to print the following editorials in the Record. There being no objection, the material was ordered to be printed in the Record, as follows: