Statement of U.S. Senator Russ Feingold
On the Proposed Constitutional Amendment on Marriage
As Prepared for Delivery from the Floor of the U.S. Senate
Listen
to my speech from the Senate floor.
June 6, 2006
Mr. President, the Constitution of the United States is an historic
guarantee of individual freedom. For over two centuries 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 personal decisions. I took an oath when I joined this
body to support and defend the Constitution. I am saddened, therefore,
to be once again debating an amendment to our Constitution that is so
inconsistent with our Nation's history of expanding and protecting freedom.
There are serious issues facing this Congress -- the war in Iraq, health
care, high gas prices, relief and recovery after Hurricane Katrina,
the economy. These are the issues on which the American people are demanding
that Congress act. But instead, we are spending much of this week debating
this poorly thought out, divisive, and politically motivated constitutional
amendment that everyone knows has no chance of success in the Senate.
The proposed constitutional amendment before the Senate today, S. J.
Res. 1, has no better chance of getting a two-thirds majority in the
Senate than it did in 2004, another election year. There are no new
court decisions that supporters of the amendment can legitimately argue
make it any more imperative now than it was then that such an amendment
be passed. Yet the Judiciary Committee was ordered to mark up this amendment
to fit a schedule announced by the Majority Leader months ago.
This is pure politics, an election year gambit. Mr. President, we should
not play politics with the Constitution. Nor should we play politics
with the lives of gay and lesbian Americans who correctly see this constitutional
amendment as an effort to make them permanent second class citizens.
The amendment we are debating will not pass, but it still risks stoking
fear and divisiveness at a time when we should be trying to unite Americans.
Gay and lesbian Americans are our friends, our family members, our neighbors,
our colleagues. They should not be used as pawns in a cynical political
exercise.
Backers of the amendment say that want to support marriage. But Mr.
President, this debate is not really about supporting marriage. We all
agree that good and strong marriages should be supported and celebrated.
I happen to believe that two adults who love each other and want to
make a lifelong commitment to each other, with all of the responsibilities
that that entails, should be able to do so, regardless of their sex.
I know others strongly disagree.
The debate we are having in the Senate, however, is not about whether
states should permit same sex marriage. The debate is about whether
we should amend the Constitution of the United States to define marriage.
The answer to that question has to be “no.” It is unnecessary
and wrong for 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.
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. The framers of our Constitution granted limited,
enumerated powers to the Federal government, while reserving the remaining
powers of government, including family law, to state governments. Marriage
has traditionally been regulated by the States. As Professor Dale Carpenter
told the Constitution Subcommittee in its first hearing on this topic
nearly three years ago, “never before have we adopted a constitutional
amendment to limit the States’ ability to control their own family
law.” That is exactly what this proposed amendment would do. It
would permanently restrict the ability of States to define and recognize
marriage or any legally sanctioned unions as they see fit.
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, 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 in late 2003.
That decision, in a case called Goodridge, said that the State must
issue marriage licenses to same-sex couples. But the court did not say
that other States must do so, nor could it. And it did not say that
churches, synagogues, mosques, or other religious institutions must
recognize same-sex unions, nor could it. Even Governor Romney of Massachusetts,
who testified before the Judiciary Committee in 2004, 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.
Indeed, as time has passed since the Massachusetts court ruling, I
think it has become clear that passing a constitutional amendment would
be an extreme and unnecessary reaction. States are in the process of
addressing the issue of how to define marriage. Voters in several States
passed marriage initiatives in the last election. The legislature in
Connecticut recently passed a civil union bill and the Governor signed
it. In California, a bill passed by the legislature to permit same-sex
marriages was vetoed but new protections for domestic partners were
signed into law. The States are addressing the issue in different ways,
which is how our federal system generally works. I may agree with some
state actions and disagree with others, but it would be a tragic mistake
to cut this process off prematurely.
I was particularly struck by reports on what happened recently in the
Massachusetts legislature. The legislature narrowly passed a constitutional
amendment in 2004 to prohibit same-sex marriage, but when the amendment
returned in 2005, as the Massachusetts Constitution requires in order
to put it on the ballot, the legislature rejected it by a vote of 157
to 39. Many supporters of the amendment apparently changed their minds.
So we should think long and hard about pre-empting state legislatures
or state initiative processes through a federal constitutional amendment
that freezes in place a single, restrictive definition of marriage.
The supporters of the federal marriage amendment would have Americans
believe that the courts are poised to strike down marriage laws. They
suggest that we will soon see courts in States other than Massachusetts
requiring those States to recognize same-sex marriages, too. Of course,
no such thing has happened in the two years since the Goodridge decision
went into effect in May 2004. So this is a purely hypothetical issue
-- hardly a sound basis for amending our Nation's governing charter.
And even if another State followed Massachusetts, either by legislative
action or a judicial ruling, I believe it would be a grave mistake for
Congress to step in.
As Professor Lea Brilmayer testified before the Constitution subcommittee
in 2004, and as remains true today, 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 many States have already taken steps to reaffirm
this principle. In 1996, Congress passed the Defense of Marriage Act,
a bill I did not support, but that is now the law. Section 2 of 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 constitutional challenge to the
Federal or State DOMAs. In fact, three such challenges have already
failed. Of course, it is possible that the situation 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 simply to prevent the Supreme Court from reaching
a particular result in the future? What kind of precedent would such
a preemptive strike against the governing document of this nation set?
Former Representative Bob Barr, the author of the Federal DOMA, strongly
opposes amending the Constitution on this issue. 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. I have spoken with Mr. Barr about this.
He and I disagree about many things. But we agree wholeheartedly that
the Constitution is a very special document and that amending it to
enact the social policy of the moment would be a grave mistake.
Mr. President, so far I have been discussing the general arguments
against a federal constitutional amendment defining marriage. I think
they are compelling. But I also want to take some time today to discuss
the specific text we are now considering: S.J. Res. 1, the so-called
Marriage Protection Amendment. The amendment states: “Marriage
in the United States shall consist only of the union of a man and a
woman.” That is what we have come to refer to as “Sentence
One.” The amendment continues in “Sentence Two”: “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.”
Before I discuss some of the ambiguities in this language, let me first
remind my colleagues that this whole effort has often been portrayed
by its proponents as a reaction to so-called “liberal activist
judges” reinterpreting marriage. Time after time, we are told
that judges have made law, in cases like the Supreme Court’s decision
in Lawrence v. Texas that state sodomy laws are unconstitutional, in
the Massachusetts decision in Goodridge, and in the Vermont state court
decision that forced the state legislature to adopt a civil unions law.
This amendment is needed, we are told, to counteract and correct those
missteps and to make sure they don’t happen again. Keep that underlying
concern in mind as we discuss the ambiguities of this language and who
will ultimately decide how they are to be resolved.
A question that is important to many Senators, and to many Americans,
as they consider this constitutional amendment is how it will apply
to laws passed by state or local governments granting same sex couples
the right to enter into civil unions or domestic partnerships to become
eligible for government recognition of their relationships and for certain
benefits. One of the witnesses at the last hearing we held in the Subcommittee
on the Constitution, Prof. Michael Seidman, from Georgetown University
Law Center, testified quite convincingly about the ambiguity of the
language of this amendment on that question. And so the Chairman of
the Subcommittee asked if he had thought about how to draft the amendment
to, as he put it, “hit the mark.”
Prof. Seidman responded:
Part of the problem is I think the people behind the amendment themselves
are not in agreement on how to go…. So with respect, Senator,
I think you guys have to get straight what you want before you tell
me how to go about drafting it.
Mr. President, at the last Subcommittee hearing on this topic, I asked
the witnesses that Subcommittee Chairman Brownback had called some specific
questions about this issue and then I asked them to respond to written
questions about how they believe S. J. Res. 1 would apply to a challenge
brought against specific state legislative actions. I have asked these
questions of previous witnesses as well, and I have seen statements
from many of the supporters of the amendment. I think Prof. Seidman
is absolutely right. It is simply not clear what the sponsors of this
amendment intend.
Let’s start with civil unions. Would this amendment outlaw civil
unions? Specifically, would the recently passed Connecticut statute
that establishes civil unions in that State be unconstitutional under
this amendment? The Connecticut statute provides as follows:
“Parties to a civil union shall have all the same benefits, protections
and responsibilities under law, whether derived from the general statutes,
administrative regulations or court rules, policy, common law or any
other source of civil law, as are granted to spouses in a marriage,
which is defined as the union of one man and one woman.”
Prof. Richard Wilkins, from Brigham Young University, who I understand
was consulted in the drafting of the amendment, answered my written
question as follows: “The language quoted from Section 14 of the
Connecticut statute would not be unconstitutional under the proposed
amendment.” But Prof. Gerard Bradley, from Notre Dame, another
drafter of the amendment, testified as follows at our hearing in April:
“The amendment leaves it wide open for legislatures to extend
some, many, most, perhaps all but one, I suppose, benefit of marriage
to unmarried people, but I would say if it is a marriage in all but
name, that is ruled out by the definition of marriage in the first sentence.”
And Prof. Christopher Wolfe, from Marquette University, another witness
from the subcommittee’s last hearing, agrees with Prof. Bradley.
He said the following in answer to my written question:
“I think Connecticut’s civil union scheme, which was enacted
by the General Assembly without any judicial involvement, would be unconstitutional
under the Marriage Protection Amendment, because it effectively authorizes
marriage for unions of two men or two women, since the only difference
between civil unions and marriage is the name.”
Groups supporting the amendment like the Alliance for Marriage and
Concerned Women for America seem to think the amendment will permit
legislatures to enact civil union legislation. In a radio interview
during the Senate’s consideration of the amendment in 2004, Bob
Knight, the head of that Concerned Women for America, suggested that
wasn’t such a good thing. He said:
The second sentence was so convoluted that many legal scholars disagreed
about what it actually meant, and its backers assured everyone that
it meant states could pass civil unions, which is not the way to protect
marriage. Civil unions are gay marriage by another name.
As recently as November 2005, the website of the Alliance for Marriage
had the following explanation of a chart in which it says that “quasi-marital
schemes” such as civil unions would be permitted if adopted by
a state legislature rather than imposed by court:
“The second sentence ensures that the democratic process at the
state level will continue to determine the allocation of the benefits
associated with marriage.”
Interestingly, this chart no longer appears on the website. I won’t
speculate about why that is, but it does seem like an important question
for supporters of this amendment to get their stories straight on. There
are states in the country today that authorize civil unions. How would
this constitutional amendment affect those laws? We know what the supporters
of the amendment intended with respect to the law in Massachusetts,
but what about in Vermont, and Connecticut, and California, and New
Jersey? What are duly elected state legislatures, in the exercise of
their responsibility to enact laws consistent with the values and preferences
of their citizens, allowed to do, and what are they prohibited from
doing? Don’t they deserve to know?
I could go on and on here Mr. President, but let me mention Prof. Scott
Fitzgibbon of Boston College Law School, who also testified in support
of the amendment at the Subcommittee’s last hearing. Mr. Fitzgibbon
simply declined to answer when I asked him at the hearing whether the
amendment would allow a state employer to give benefits to unmarried
domestic partners of its employees. And he also refused to answer a
followup written question about whether Connecticut’s civil union
law would be constitutional. But he did say the following at the hearing:
“I am just going to say that the degree of ambiguity …
isn’t such a terrible thing. This isn’t part of the tax
code. It is proposedly [sic] a part of the United States Constitution
and constitutional provisions rightly leave some scope for later determination.”
So there you have it Mr. President. The supporters and drafters of
this amendment can’t agree on how it would affect civil union
laws like the one recently enacted by the democratically elected legislature
of the State of Connecticut. And at least one of them says that ambiguity
is not such a bad thing. It’s normal for constitutional provisions
to leave “some scope for later determination” he says.
So who will decide this question, which everyone can anticipate will
be raised if this amendment becomes part of the Constitution? Who is
responsible in our legal system for making a “later determination,”
as Prof. Fitzgibbon calls it, of the meaning of a constitutional amendment?
You guessed it, Mr. President, the courts! Given how this whole exercise
of trying to define marriage in the governing document of our country
started – outrage over a state court’s interpretation of
a state constitution and fear of supposedly “activist judges”
taking it upon themselves to redefine marriage -- that is ironic indeed.
Now Prof. Wolfe had an interesting suggestion when he answered my written
questions concerning the California and New Jersey domestic partner
statutes. Last summer, the California legislature enacted a statute
that grants all the same rights to domestic partners as it does to married
spouses, except the right to file a joint tax return. All the rights
and benefits but one. Under Professor Bradley’s interpretation,
that’s probably ok. Professor Wilkins agrees that California’s
statute would survive a challenge. The chart that used to be on the
Alliance for Marriage’s website also agrees. I think a few of
my colleagues made similar statements yesterday on the floor. But Prof.
Wolfe isn’t so sure. He says in his written response to my question:
“It could be argued that it is unconstitutional under the Marriage
Protection Amendment for the same reason that the Connecticut civil
union law is unconstitutional, since–even though one provision
provides one exception–the general principle of the law (in SEC.
4) defines the domestic partnership as being equivalent to marriage.
The single exception could easily be viewed as merely an evasive maneuver
to avoid a pure equivalence that would make the statute constitutionally
vulnerable.
“It could also be argued, however, that there is a difference
between this domestic partnership law and marriage (beyond just the
name), and therefore domestic partnership is not marriage in everything
but name, and therefore it is within the constitutional power of the
California legislature to pass…. In a close case like this, I
think the legislative history would be likely to play a determinative
role in the final decision.”
He goes on in an answer concerning the New Jersey domestic partnership
statute to make his suggestion:
Of course, it would be desirable to clarify this question, if possible.
For example, offering an unambiguous statement of the meaning of the
amendment in the legislative history (e.g., the committee report on
the amendment, and representations–uncontradicted by other supporters
of the amendment–of the amendment’s sponsors in floor debate)
would be likely to have a substantial impact on how the amendment would
be understood by those who have to vote on it, in Congress and in state
legislatures.
Well there’s a novel idea. Let’s have an “unambiguous
statement” of the meaning of the amendment, uncontradicted by
other supporters of the amendment. But Professor Wolfe, a supporter
of the amendment, doesn’t know what it is. He answered my questions
as if they were a law school exam hypothetical. This amendment has been
around for nearly three years and we still don’t have that unambiguous
statement. Will we get one in this debate on the floor? I don’t
know. I do know that some of the most ardent supporters of the amendment
in the Senate are strongly opposed to civil unions as well. But will
the amendment they wrote to supposedly protect marriage outlaw civil
unions and domestic partnerships? It’s not clear to me yet, and
when we are talking about amending the Constitution of the United States,
I think it should be.
The Senate and state legislatures – not to mention the American
people -- deserve clear and reliable answers to these questions before
they are asked to decide whether to amend the Constitution. So I would
hope, Mr. President, that every Senator who is planning to vote Yes
on this amendment today will tell us before we conclude this debate
what he or she thinks the amendment means and how it would apply to
state statutes already on the books, as well as others that might be
passed. Maybe we will get that unambiguous statement we have waited
so long for. Then again, maybe we won’t.
Even though Prof. Wolfe answered my question as if it were a law school
exam – saying “it could be argued on the one hand….
But on the other hand” – this is not just an academic exercise.
It will have an impact on the lives of millions of Americans.
Mr. President, as you can tell, I am very concerned about the Senate
considering this amendment on the floor without any certainty about
what it means or how it will be applied. Fortunately, it seems clear
that supporters of this amendment don’t have the votes to pass
it in the Senate. So the lack of clarity has no real world repercussions
for now. But it is extremely disappointing that we may vote in the United
States Senate on an amendment to the Constitution of the United States
with such basic questions unresolved.
The Judiciary Committee should have fully explored these questions.
Instead, because of the rigid schedule to bring this matter to the floor,
the Committee considered the amendment hastily and out of the public
eye, without cameras, without microphones, with only a handful of press
and no members of the public present. That is no way to treat any important
legislative matter, let alone an amendment to the basic governing charter
of our country, the Constitution. As a result, the amendment did not
receive the kind of searching inquiry and debate that a constitutional
amendment should receive. Our hearings in the Subcommittee on the Constitution
exposed serious questions about the meaning and effect of the amendment,
including the conflicting answers to written questions that I have discussed.
Further work in the Committee might have shed light on those questions
for our colleagues in the Senate who are now faced with having to vote
on the amendment. But it seems that politics often trumps reason in
this body during an election year. And when the Majority Leader has
promised interest groups supporting this amendment that there will be
a floor consideration on a particular day, there is apparently nothing
that can stand in the way of that promise being kept. Not even respect
for the Constitution of the United States.
Mr. President, we should not write discrimination and prejudice into
the Constitution. And we should not prematurely cut off the important
debates taking place in States across the country about how to define
marriage by putting in place a permanent, restrictive federal definition
of marriage.
As we sit here today, there are Americans across our country out of
work, struggling to pay the month's bills, worrying about their lack
of health insurance or their ability to put their kids through college.
Instead of spending our limited time this session on a proposal that
is destined to fail and will only divide Americans from one another,
we should be addressing the issues that will make our Nation more secure,
our communities stronger, and the future of our families brighter.
I urge my colleagues to oppose this unnecessary, mean-spirited, divisive
and poorly thought out constitutional amendment.
Thank you Mr. President, I yield the floor.
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