# 152 Cong. Rec. S5444 - Marriage Protection Amendment - Motion to Proceed

Source: 2006 Congressional Record, Vol. 152, Page S5444
Marriage Protection Amendment - Motion to Proceed
HON. RICHARD JOHN SANTORUM
OF PENNSYLVANIA IN THE UNITED STATES SENATE
Tuesday, June 6, 2006
Mr. SANTORUM. Mr. SANTORUM. Mr. President, I thank and congratulate the Senator from Colorado for his terrific work on this issue, as well as the Senator from Kansas, Mr. BROWNBACK, for his great work in the committee in moving this constitutional amendment forward. This is a very difficult debate for a lot of people. It is very hard, sort of sad in some respects, that we are here talking about the issue of marriage, that talking about marriage is somehow a difficult debate. But it is for a lot of people. I know in many meetings of our colleagues when the issue of marriage comes up, heads drop. It is an issue that people feel uncomfortable talking about, something that maybe in some respects they feel like, Why is this even an issue?
That is a good question. Why is it an issue? I will talk about that in a minute.
There is a foundational question I would like to talk about that up until a couple of days ago I was not planning to talk about, which is, Why are we doing this now? This is the big buzz in the media. Oh, this is being brought up for political purposes; and this is all about politics and has nothing to do with the substance of the matter, and the media—which loves to pawn off issues and give spin to issues—has adopted this approach.
As Senator ALLARD would affirm, we have been considering now for several months what the best timing would be to bring this legislation up. We had a very forceful voice being heard from the American public. In fact, there is a chart of all the States that approved constitutional amendments in the last election of 2004. We are now up to 19 States in the country that have spoken; the people have spoken in those States.
There was a lot of momentum coming out of the 2004 election, so when we reconvened in 2005 we thought maybe this was a good time to bring it up, now that we have just had an election. We thought, in looking at this, it would be better if we had more court activity between the election and when we bring this amendment up. That, really, the issue is, as we have heard repeatedly in the Senate, we are trying to bring about a decision on marriage in this country through a democratic process.
I can’t think of anything more democratic involving more people than a constitutional amendment. It takes two-thirds of this House, two-thirds of the other House and three- quarters of the States; 38 States have to ratify this amendment. Talk about a public debate where there is huge public input across America. The constitutional amendment is the way to do it. It is the most democratic way of making a decision on anything in this country. We thought it would be a good juxtaposition to see further court erosion, further decisions made by courts to erode the public’s will on the issue of marriage. I say the ‘‘public’s will’’ only because we have 19 States and many others that have said what there really is with respect to marriage. So we are debating, almost month to month, and we have had conversations, Is this the right time?
We had a Nebraska decision which has been talked about where a Federal court overturned the State constitutional amendment in the State of Nebraska. There was a case in Washington State. Washington State is an interesting State because, unlike Massachusetts, there is no residency requirement for marriage. Any couple from anywhere in the country can go to Washington and get married if the Supreme Court of Washington were to overturn their statute. Washington so far has not issued their opinion. They have had the case for 15 months and for some reason or another they have not decided to decide. We were waiting, trying to see if this was an appropriate time.
Last year we decided that we were not going to wait around for courts and we set this date for the first of June. That is why we are here today—not for any political reason. If it was purely politics, we would be debating this in September. We are debating it in June because we thought we would have 3 or 4 days as opposed to being compressed to 1 day in September. So we are here to give this the proper attention this vitally important issue deserves. The other question that I did want to talk about is, How did we get here, not why are we doing it now, but how did this issue come about? There were a couple of States that were playing around with this issue for a while— Vermont and Hawaii. But the issue really got jump-started with the court decision—not surprisingly, a big court decision—the court decision that occurred in Washington with the United States Supreme Court is the Lawrence v. Texas case.
Lawrence v. Texas opened the floodgates for a variety of different litigation going across this country using, now, a constitutional right established by the United States Supreme Court in Lawrence. It was a seminal decision, there is no question about it. We have a classic example of the U.S. Court forcing its will on establishing a right and then giving other courts the right or the ability to then project its power on to the people, to make decisions and force decisions, force legislation, as in the case of Massachusetts, onto the people.
I want to talk about that decision because I think it is important, but I want to talk about the decision before that. Just a few years ago, 15 years before Lawrence v. Texas was decided, a similar case was decided, Bowers v. Hardwick. I want to take a look at Justice White who wrote for the majority in Bowers, saying sodomy laws were constitutional, that moral laws passed by the States dealing with sexuality were, in fact, constitutional. There was no constitutional right that barred States and the public from regulating in this area. He said:
The right pressed upon us here [this is what the litigants in the Bowers case were arguing] has no similar support in the text of the Constitution, it does not qualify for recognition under the prevailing principles for construing the 14th amendment. Its limits are also difficult to discern . . . This limit of consensual sexual activity being a constitutional right which was made by the litigants, saying we have the right as individual adults under the Constitution to any kind of sexual behavior that we desire and the State cannot limit us.
He said:
Its limits were difficult to discern . . . And if respondent’s submission is limited to the voluntary sexual conduct between consenting adults, it would be difficult, except by fiat, to limit the claimed right to homosexual conduct while leaving exposed to prosecution adultery, incest, and other sexual crimes even though they are committed in the home. We are unwilling start down that road.
What the Court said here was that if you open up the standard, the legal standard, if you change it for a constitutionally protected activity from that activity within marriage to that activity between consenting adults— and that was the decision here, change the standard from a Constitution that protects the marital union from State intrusion to consenting adults with respect to homosexual activity—in this case, the Court said: No, we can’t go there. Because only by fiat could we then limit other activity beyond that. Let’s fast forward to shortly before the Lawrence v. Texas decision.
If . . . you have the right to consensual sex within your home, then you have the right to bigamy, you have the right to polygamy, you have the right to incest, you have the right to adultery. You have the right to do anything.
That comment has been reprinted probably 100,000 times in the last few years as an outrageous comment made by a U.S. Senator. It was the same comment that was made by Justice White in the majority opinion. Let’s fast forward a few months after that, Justice Scalia in the dissenting opinion in the Lawrence v. Texas case:
State laws against bigamy, same-sex marriage, adult incest, prostitution, masturbation, adultery, fornication, bestiality, and obscenity are likewise sustainable only in light of Bowers’ validation of laws based on moral choices. Every single one of these laws is called into question by today’s decision; the Court makes no effort to cabin the scope of its decision to exclude them from its holding. What he is saying is that now that road which Justice White and the Court back in 1986 refused to go down, this Court in Lawrence v. Texas had headed us down that road.
Justice Scalia went on to say:
Today’s opinion dismantles the structure of constitutional law that has permitted a distinction to be made between heterosexual and homosexual unions, insofar as formal recognition in marriage is concerned. If moral disapprobation of homosexual conduct is ‘‘no legitimate state interest’’ for purposes of proscribing that conduct; and if, as the Court coos (casting aside all pretense of neutrality), ‘‘[w]hen sexuality finds overt expression in intimate conduct with another person, the conduct can be but one element in a personal bond that is more enduring,’’ what justification could there possibly be for denying the benefits of marriage to homosexual couples exercising ‘‘[t]he liberty protected by the Constitution.’’ Surely not the encouragement of procreation, since the sterile and the elderly are allowed to marry. The case ‘‘does not involve’’ the issue of homosexual marriage only if one— And they are quoting the majority opinion again because the majority opinion said this doesn’t deal with marriage, Scalia says this case does not involve the issue of homosexual marriage entertains the belief that principle and logic have nothing to do with the decisions of this Court.
The fact is, principle and logic have everything to do with judicial decisions. That is the problem with them. That is why they are different from legislative decisions. You see, when a court makes a judicial decision, they do so based on a judicial foundation that has a logical and rational basis to it and logical consequences. The logical consequence to the Lawrence v. Texas case is the next case, not a Supreme Court case before the U.S. Supreme Court but before involving Massachusetts. What Massachusetts did was the logical thing from Lawrence v. Texas. In fact, they cite Lawrence v. Texas 5 times in the main opinion and 11 times in the combined majority opinions. It is the basis upon which they build their decision. Because unlike the majority opinion in Lawrence v. Texas which says this has nothing to do with marriage, it had everything to do with marriage.
The interesting thing about the Lawrence v. Texas decision—and this goes even more to judicial activism—they could have decided the Lawrence v. Texas decision for the plaintiffs in that decision. They could have found that statute unconstitutional. And in fact, had they done so—and in fact, they did in part of their opinion; they found it unconstitutional under equal protection grounds—had they limited their opinion to that, I would have agreed with the decision. I think the Texas statute probably was unconstitutional under equal protection grounds. And so when they started the decision out and they said: This is unconstitutional because of equal protection, I said that is right.
Here is what the court did and, unfortunately, what courts increasingly do. While we are here, we are going to establish a new constitutional right. While we are here, since we have the opportunity, since this case is before us, we are going to be activist jurists, and we are going to create a whole new body of law that will have huge ripples throughout society. So they did. They didn’t have to, but they did. We are now debating this amendment because of it. They have this ripple effect which we are seeing throughout courts throughout the country, Federal as well as State.
Here in the Goodrich decision, it says:
It is clear from the quote below that the Goodrich decision was considered the ‘‘logical next step.’’ Our concern is with the Massachusetts Constitution as a charter of governance for every person properly within its reach. ‘‘Our obligation is to define the liberty of all, not a mandate of our own moral code.’’ There they were quoting Lawrence v. Texas. It went on to note that the Lawrence case ‘‘specifically affirmed that the core concept of common human dignity protected by the Fourteenth Amendment to the United States Constitution precludes government intrusion into the deeply personal realms of consensual adult expressions of intimacy and one’s choice of an intimate partner. The Court also reaffirmed the central role that decisions whether to marry or have children bear in shaping one’s identity.’’
The ‘‘logical next step,’’ so the Goodrich decision is very much in conformity with the Lawrence v. Texas decision. That is why we are here. We are here because of judicial activism. Our plea to the Members of the Senate is to allow the people to make the decision with respect to this foundational institution of our country—the traditional family, marriage— that courts who just happen to be deciding a case that didn’t need them to decide it this way or use this logic or rationale, that courts just can’t decide that they want to involve themselves into legislative affairs and send shock waves throughout our culture without the public having a right to say something, without the public having a right to put their stamp of approval on what is moral and just.
Some have said that the States can handle this. Some have said this is a federalist issue; We should not have Federal legislation on this; This is usurping States rights.
I don’t know what involves the States more than having every State legislature in the country debate this issue. That is not usurping States rights; that is placing in the hands of the States the decision as to whether to move forward. Thirty-eight of the fifty States have to affirm this constitutional amendment. This is not an easy thing to do. That is why we don’t have very many amendments to the Constitution. But it is a purely democratic process, just like the debate in the Senate. I think we should give the States, the people, the right to make this decision before a group of unelected judges, following the lead of the U.S. Supreme Court, do it for us. First and foremost, this constitutional amendment is about democracy. It is about the people expressing their will on potentially the greatest moral issue of our time, and that is the integrity of the traditional family. That is issue No. 1.
Issue No. 2 is an important one, also. I heard the Senator from Kansas talk about this eloquently, so I won’t spend a lot of time. He did as good a job as any on the issue. That is the impact of the deconstruction of marriage on society. I heard the Senator from Kansas say that marriage is already in trouble in America. There is certainly little to argue that that is not true. It is true, marriage is in trouble. But I agree with him by saying just because something is in trouble doesn’t mean you need to get rid of it altogether. Without question, once you change marriage from an institution whose societal purpose is focused on having children, being an institution that is the best place to rear future generations of society, once you change marriage from being principally about children, although not exclusively, certainly, but principally about children, to exclusively about adults, then you change marriage forever. We did that in part 30-plus years ago with no-fault divorce laws. When they came into place, they said children will be helped by this. There will be fewer unhappy homes. I don’t think there is a whole lot of evidence out there that would suggest children have been helped by the rapid increase in divorce. I know the Senator from Kansas had some charts up of how children in two- parent families don’t end up in poverty as much, do better in school. I don’t know of a social indicator out there that doesn’t suggest that being in a married home is not more beneficial for children. That is certainly not to say that children raised in single-parent homes can’t and don’t do well. Most do. But the point is, society should be advocating for what is best for children and should set a standard for what is best.
We know what is best. We know it intrinsically, but we have supporting evidence as to what is best for children— less substance abuse, less abuse or neglect, less criminal activity, less early sexual activity, fewer out-of-wedlock births, fewer behavioral problems. It goes on and on. We know marriage is inherently good for children. We also know that when we destroy marriage, when we deconstruct marriage, bad things happen. We saw that with no-fault divorce. More people got divorced. We changed the definition of marriage, and we say marriage is no longer about children, no longer about the next generation. Marriage is simply the affirmation of affection of two adults. Or, as Justices Scalia and White suggested, why limit it there. Why not, as we see in cases now being filed all over the country, why not three adults, four adults, five adults? What is the difference from the standpoint of a rationale? If marriage is not about one man and one woman for the purpose of a relationship of which to have children and continue society, if it is about two women and two men or two women and three men, why not whatever arrangement? If gender does not matter anymore, why does number matter? What is the significance? What is the logical argument to draw the line here? As Justice White said, it would be by fiat to draw the line. So we have a situation where without question, marriage would be undermined by this deconstruction. In fact, we see it. I have an article by Stanley Kurtz on what is going on in Europe, in countries that have, in fact, changed the definition of marriage. Those countries are now seeing dramatic declines in the number of marriages, not increases in the numbers of same-sex marriages but declines in the number of heterosexual marriages and dramatic and steady increases in the number of children being born out of wedlock.
I ask unanimous consent for 2 additional minutes.
The PRESIDING OFFICER (Mr. BURR). Without objection, it is so ordered.
Mr. SANTORUM. Mr. President, the final point I want to make—and I will try to come back to the floor when I have more time—is regarding the impact of this movement in the country by the courts on religious freedom. There was an article written, which was on the front cover of the Weekly Standard, called ‘‘Banned in Boston,’’ where Maggie Gallagher talks about Catholic Charities in Boston having to get out of the adoption business because they will not consent, under their Catholic orthodox faith, to place children into same-sex couple homes. It is against the Catholic faith to do so. There is a very clear message from Rome that this is not proper behavior. They were refused their license, and now one of the longest standing adoption agencies in Massachusetts no longer places children for adoption. Why? Because all around faith, all around churches and parachurch organizations, and missionary organizations is, whether we like it or not, the Government.
When the Government comes down with things that are contrary to that faith group there will be friction. In fact, Mark Stern, who is a lawyer for the American Jewish Committee, is quoted as saying:
It is going to be a train wreck, a very dangerous train wreck. So not only will this new right that the court has established in the follow- on—the right of same-sex marriage— going to cause problems with democracy and problems with marriage, it is going to create huge problems for our faith-based organizations. It is something that we need to address. Thank you.
Mr. REID. Mr. President, I suggest the absence of a quorum.
The PRESIDING OFFICER. The clerk will call the roll.
The bill clerk proceeded to call the roll.
Mr. SANTORUM. Mr. President, I ask unanimous consent that the order for the quorum call be rescinded.
The PRESIDING OFFICER. Without objection, it is so ordered.
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This work is in the public domain in the United States because it is a work of the United States federal government (see 17 U.S.C. 105).
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