Marriage Amendment Debate is Proof of GOP’s Misplaced Priorities

>Statement of Senator Patrick Leahy

Ranking Member of the Judiciary Committee

On S.J. Res. 1, The Marriage Protection Amendment

June 5, 2006

It should come as no surprise to any observer of partisan politics that the Republican Leader has decided that today our Nation’s most pressing priority is concern over committed relationships between same sex couples. That we are devoting the precious few Floor days we have left in this session to this issue, when so many of us are trying to focus on solutions to high gas prices, the rising costs of healthcare, the ongoing situation in Iraq, and strengthening our national security, is a testament to the misplaced priorities of the Senate Republican leadership. News reports have clearly revealed how this proposed constitutional amendment is being used to satisfy the most extreme right-wing supporters of Republican politicians. I do not believe that Americans are well served by this strategy.

Election-Year Strategy

The Constitution is too important to be used for such a partisan political purpose. I agreed with First Lady Laura Bush when she recently told Fox News that this proposed amendment should not “be used as a campaign tool, obviously.” Even so — obviously — that is exactly what Karl Rove and others are doing. That is why we only vote on such partisan measures in the run up to an election, and apparently high campaign season has arrived on Republican leaders’ calendar. And right on the heels of this campaign-season bid to amend the Constitution, they are readying yet another constitutional amendment for the Floor.

Many people have aptly noted that this amendment would write discrimination into our nation’s Constitution. I agree. That is exactly what we are being asked to spend our time doing this week.

The Republican leadership’s strenuous efforts to move this proposed amendment to the Senate floor for debate shows how important it is to the Republican leadership of the Senate to cater to the extreme right-wing and special interest groups agitating for a fight over this issue. They intend to stir up an election year fight and use it as a “campaign tool” and “a political strategy.”

Displacing Americans’ Real Priorities

Right now the Senate should be addressing Americans’ top priorities, including ways to make America safer, the war in Iraq, rising gas prices, health care and health insurance costs, stem cell research, fixing FEMA, assisting our veterans whose privacy has been compromised by the Veterans Administration, and the reauthorization of the Voting Rights Act. Instead, the President’s political strategists and his Senate allies are doing their best to divide and distract the American people and the Senate from the work of fixing real problems, by pressing forward with this controversial proposed constitutional amendment.

As a nation we are currently facing many pressing issues – the continuing sectarian violence in Iraq, stunning investigations, indictments and convictions for government corruption, a complicated drug program that now penalizes our seniors, a burgeoning national debt, historically high gas prices, the largest theft of private information maintained by the Government in history, and on and on. The Judiciary Committee has been conducting hearings but has yet to get to the bottom of the Bush-Cheney Administration’s warrantless wiretapping and other programs that have been gathering information on Americans. We also need to make reauthorizing the expiring provisions of the Voting Rights Act a priority in the remaining months of this session.

But on the Senate Floor, we are being made to turn, again, to a divisive measure that will do nothing to correct the weaknesses in our homeland security, will do nothing to enact a budget that is now overdue, will do nothing to stem the rise in gas prices and will do nothing to respond to the most pressing issues facing hardworking Americans.

What Has Changed Since 2004?

As some may remember, proponents of a Federal Marriage Amendment in 2004, the last election year, could not assemble a majority of Senators to even move to consider the proposed amendment. Remember that in 2004 we were warned that immediate action was required to protect the fragile institution of marriage, which was said to be under immediate threat. Of course the real threats to marriage include adultery and unfaithfulness. The pressures on marriages come from economic stresses and unhappiness.

By contrast, in the past two years, no States have been forced to recognize same-sex marriages. Rather, several States voted to amend their State constitutions to define marriage. The Defense of Marriage Act which defines marriage as a union between a man and a woman for federal purposes and prevents any State from being forced to recognize another States’ approval of same sex marriage remains the law of the land. This bipartisan law has been upheld three times in federal court and is under no threat of being overturned. There never was then, nor is there now an imminent crisis that demands the diversion of Congress’s attention from all these other urgent problems or that justifies an alteration of our founding document to federalize marriage. Unlike the Republican leadership and the Bush-Cheney Administration, I trust the 50 States to define marriage and the rules of marriage as they always have.

I am sure we will continue to hear a lot of rhetoric about “judicial activism” as a reason why we need to dramatically alter the United States Constitution. Even the President in his weekly radio address invoked the notion of rogue judges that flaunt the law as a justification for this drastic measure. This politically convenient criticism is surprising considering the fact that the majority of federal judges have been appointed by Republican presidents. Any judicial decision that was a dramatic departure from the status quo on this issue would certainly be appealed to the United States Supreme Court where seven out of nine justices have been appointed by Republican presidents. Does anyone really believe that Chief Justice Roberts is going to preside over a United States Supreme Court that will override the law in this regard? Moreover, any State can define marriage in their Constitution.

Ironically, the proposed federal marriage amendment, now renamed the Marriage Protection Amendment, would itself produce a wide range of litigation that judges, the very boogeymen that proponents of the proposed amendment demonize, would be required to resolve. It will be judges who will be forced to resolve the acknowledged ambiguities and meaning of these words if they are added to our Constitution.

Ambiguous Language

The proposed language we are being required to consider is exceedingly confusing and subject to interpretation. Its sweeping language will inevitably create uncertainty. For example, who would be bound by the provisions of the Marriage Protection Amendment – State actors, private citizens, or religious organizations? What would constitute the “legal incidents” of marriage? Can a legislature pass a “civil unions” law that mirrors its marriage law, so long as it does not use the word “marriage?” Can the people of a State put protections for civil unions in their State constitution? What State actors are forbidden from construing their own constitutions – the judiciary only, or State executive branch officials as well? Committee hearings on these precise language issues did not resolve these questions.

I am particularly concerned about the fate of the Vermont civil unions that have been formed under the color of State law. Despite an initially wrenching debate, our State law remains on the books after five years. There has been no ensuing crisis in the lives of Vermont families. It is not clear to me, however, whether the proposed amendment would make the Vermont law unconstitutional. In short, while the language of the amendment before us has changed slightly from the original version, it raises the same concerns.

Presidential Inconsistencies

I started this afternoon by alluding to my agreement with the recent statements of the First Lady that the Constitution should not be used for political purposes. I agree with her statement. Just as I agreed with her sense that the President’s “bring it on” language from the early days of the Iraq occupation was not helpful.

Starting this last weekend we have seen that suddenly the President is, nonetheless, involving himself in this effort and is now prepared to endorse a specific constitutional amendment on this divisive topic. I have written President Bush on more than one occasion to ask precisely what language he and his Administration endorse. My most recent letter was last month. I ask that a copy be included in the Record. My letters have gone unanswered. The Administration did not send a representative to any of the Committee hearings on this amendment, nor did the Administration comment on the specifics of the current proposal or respond to questions about its language. His general endorsement during the last couple of days is in the nature of a political campaign — more in the nature of a signal than of substance. The President’s recent statements on Saturday and at the rally today at the Old Executive Office Building adjacent to the White House remain general and vague. After the last campaign and his re-election, the President indicated that he had no intention of including such an amendment among his Administration’s top priorities, and he had no intention of pressing Congress to approve it. What has changed since that day and today? Only his standing in the public opinion polls. The right wing elements of his base are agitating, and he has responded to them as he always does.

Undermining States’ Prerogatives

I remember a time when leaving States in control of issues of family law was an easy decision for Members on both sides of the aisle. It is disappointing that Senators would endorse this broadly drafted amendment when it so clearly violates the traditions of Federalism and local control that many in this body have claimed to respect and cherish.

As prominent conservative and former congressman Bob Barr put it, “Marriage is a quintessential state issue. The Defense of Marriage Act goes as far as is necessary in codifying the federal legal status and parameters of marriage. A constitutional amendment is both unnecessary and needlessly intrusive and punitive.”

It reminds me of last year when we were called into emergency session to try to overturn highly competent state courts that had thoroughly reviewed the medical decisions in the Terri Schiavo case. What has happened to conservatives who would oppose the Federal Government’s intrusion on the prerogatives of the States? The States have traditionally set the laws on marriage. That has been a foundational principle in laws pertaining to our families. The States determine what age you must be in order to marry, whether you have to have your parents’ permission, and so on. The States have done that and do it well. And what we ought to do is to continue to allow the States to do that.

Most States are going to say marriage is between a man and a woman. My own State of Vermont, because of our Constitution, was given a question: Would we support gay marriage? My State said no. Instead, we have civil unions, which give gay couples legal rights of inheritance and hospital visitation and other prerogatives. In Judiciary Committee hearings, experts disagreed about whether this proposed amendment would likely invalidate Vermont’s civil unions.

In addition to my concerns that this effort will trample on State authority and responsibility, I am deeply concerned that this proposal is writing discrimination into the Constitution. For the first time in our nation’s history, we would be amending the Constitution to narrow individual rights and to federalize an issue of family law. I am a conservative when it comes to the Constitution and to conserving the Constitution.

How will this measure affect American families that currently exist in this country whose members seek the protection of civil unions and the acknowledgment of their committed relationships? How will it affect child support enforcement, inheritance and insurance benefits? I hope that those who claim to care about families will turn away from wedge politics and scapegoating and diminishing others. Instead, we should join together to work on the many pressing issues already piling up on Congress’s agenda that affect the American family – like healthcare, like gas prices, like pensions, like paying for college educations and like raising the minimum wage.

Divisiveness and Demonization

Last month, President Bush spoke eloquently about this country and our values. He emphasized something I wish that this White House and the Republican leadership of the Congress would keep in mind in connection with their efforts to demonize gay and lesbian Americans. The President said: “We cannot build a unified country by inciting people to anger, or playing on anyone’s fears, or exploiting the issue of” – and here I insert ‘marriage’ for ‘immigration’ – “for political gain. We must always remember,” he continued, “that real lives will be affected by our debates and decisions, and that every human being has dignity and value . . . .” Mean-spirited rhetoric does not serve this Nation or its diverse population. Our Nation would be better served if we refrained from divisiveness that is wielded like a weapon in order to score political and emotional points before an election.

As an American who has been married for more than 40 years, I am a great fan of the institution of marriage. I also believe it is important to encourage and to sanction committed relationships. I respect the people of my State for the careful manner in which they resolved this matter by recognizing civil unions. And let us be real — this state action did nothing to diminish or to threaten the marriages in Vermont or in any other State. For all these reasons, I continue to oppose measures such as this proposed constitutional amendment.