Mr. SESSIONS. Mr. President, I thank Senator Brownback. He is such a champion on this issue and has raised so many important matters for us to think about. I believe the debate we are having is a very important debate. I remember the hearings we had in the Judiciary Committee. The Senator had several--I believe he had one in the Commerce Committee maybe, and I had one in the Judiciary Committee on marriage.
One of the things we found was that almost every category of individual character and wellness was better if you were married. That is just the way it was. You had a longer lifespan, you ended up with more wealth, you had better health, you were happier, and there was less drug use, less criminality, and less suicide. All of those things are so taken for granted in the committed, historic marriage relationship.
I believe this issue is an important one that is before us. I want to share a few thoughts on the matter that deals with certain issues that are important to me, which I think are important. We are not here, let me say, first of all, because of some band of Christian conservatives. Indeed, virtually every religious organization in America cares about this issue. It is not that we wanted to enter into some sort of argument with the gay community or with those who favor same-sex marriage. We are not here because of a political agenda.
Traditional mainstream Americans were going about their business when courts began a pattern of rulings that subverted democratic principles on the long held meaning of marriage. As the cases and lawsuits have mounted and scholars reviewed the opinions and pondered their implications, it became clear that this activist movement was bold and far reaching in scope. Their design was to effect a complete change in the meaning of marriage, altering an institution that is thousands of years old. The lawyers who filed these cases had a simple plan: They would file a lawsuit attacking the traditional definition of marriage as a union between a man and a woman. They would urge the courts to declare, based on some subjective constitutional theory such as evolving standards of decency, that the Constitution of the United States--they sought to have the courts declare that the Constitution of the State or the United States requires that marriage be redefined to include same-sex marriage.
When the people complained about this usurpation, what did you hear back from those who promote these ideas?
They all lift their noses and respond: ``All we are doing is being faithful to the Constitution. Don't you respect the Constitution? We know you have deeply held beliefs, and we understand that, but we all must yield to the requirements of the Constitution, don't you know?''
That is kind of the feedback we get on this issue. But the American people are not so easily fooled. They chose not to go quietly this time. They have chosen to fight, and it is going to be a long battle. And well they should have made that decision since the question here raises the nature of marriage and the usurpation of judicial power to effect a political or social agenda, which are matters that go to the heart of this Republic and our governing structure.
So let's make some things clear. One, those who believe in the traditional definition of marriage did not start this fight. The debate is not a distraction from important issues; it is an important issue. It is not about wedge politics.
Let me state the plain truth. We are here debating this issue because there has been a deliberate and sustained effort by leftists in America to alter the definition of marriage to include a union of two men or a union of two women. This action has been, to some degree, successful, as shown by rulings in a number of important cases. So the matter is real. It is not a theoretical matter; it is very real, right now.
I do not agree with these changes in marriage. I favor the traditional approach for many reasons. More importantly, the American people overwhelmingly oppose this idea. There has been no support in the Senate, no support in the House of Representatives or the State legislatures for such actions. This new marriage concept has been rejected by legislative branches all over the Nation and has been rejected in, I think, 19 statewide votes, averaging about 70 percent each time.
These social activists have always known they have no chance to get elected officials to adopt their concept of marriage. It will not be voted in. So they have looked through the Constitution and decided their goal could only be achieved by arguing before activist judges that denying same-sex couples the right to marry is a denial of the constitutional guarantee of due process or equal protection or ideas such as that.
The Supreme Judicial Court of Massachusetts flatly agreed with those lawyers. This court declared that the constitution of Massachusetts, adopted in 1780, requires that same-sex unions be given the same recognition as a union of a man and a woman. They found that a constitutional requirement. This is activism, pure and simple. It is the very definition of activism.
The drafters of that constitution in 1780 would never have imagined their
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constitution would some day be so twisted. The Massachusetts Supreme Judicial Court plainly reached, I believe, a political, social, and cultural conclusion about homosexual unions. And they took language out of their State constitution that was never, ever crafted, designed, or expected to cover such a situation as this, and they just declared that the long established concept of marriage violated the constitution of Massachusetts. They just did it. These judges don't have to stand for election--certainly Federal judges do not--and they are not accountable to the American people. If judges do not show their personal restraint, modesty, and fidelity to the Constitution--whether or not they like the Constitution--then democracy is thwarted. So this is no small matter, I say to my colleagues.
Some will argue that the problem is a problem for Massachusetts only and that each State can decide these issues. But the U.S. Constitution provides that every State must give full faith and credit to the marriages of another State. In other words, the U.S. Constitution ordinarily requires that each State must recognize the marriages of other States.
But what about DOMA? We passed DOMA, the Federal Defense of Marriage Act, in this Congress a number of years ago. It was passed to deal with what was perceived as a problem a decade or so ago. Didn't DOMA fix the problem?
The simple answer is no. To understand why, let's look at the Supreme Court's ruling in Lawrence v. Texas. I was attorney general of the State of Alabama. This deals with one of the things you do as an attorney general of a State: you defend the laws of that State when they are challenged in the Supreme Court of the United States. So I can identify with Texas in this matter.
Without regard to established law, the Supreme Court reversed their own opinion on a very similar case in Georgia just 17 years earlier and followed a new vision of social justice, masquerading, I suggest, as constitutional law. In Lawrence v. Texas, the Supreme Court reversed their opinion in Bowers v. Hardwick, a Georgia case, and said all State sodomy laws are unconstitutional.
This is most certainly not a discussion concerning sodomy laws or the wisdom of such statutes. This debate is about the Constitution, what it means, and who controls the legal and social policy in America. Some statutes and ordinances certainly are unconstitutional and should be declared so. A city ordinance that required Rosa Parks to sit at the back of a bus simply because of the color of her skin did violate--clearly violated--the command of the U.S. Constitution that everyone be provided equal protection of the laws, and Judge Frank M. Johnson and the U.S. Supreme Court were correct to strike it down as discriminatory. That decision was not activism. It was a new commitment to the plain meaning of the existing Constitution that had been the law all along.
The situation is quite different in Lawrence. It
is instructive to review how five members--only five, really, because Justice O'Connor only concurred in the result, not in the reasoning--of the Supreme Court came to reverse Bowers, which had upheld Georgia's law just 17 years before.
So what changed? Certainly not the law. Certainly not the Constitution. This is why our American people need to pay close attention to these issues, or the judicial sleight of hand that is beginning to occur too often will succeed. No doubt the American people are paying closer attention today than they have in the past.
The majority opinion in Lawrence divorced morality from law. The Court flatly held that morality, even long established, objectively determined moral values, cannot be a basis for law, so they struck down the Texas law. The Court said the law was a product of morality, which they found was without value as a justification for law. I kid you not, that is what they did.
Remember, the Court is examining now a long-established provision of criminal law, a provision that had been recently upheld as constitutional. Remember also, the issue is not whether you approve or would vote for such a law but whether it stands without any basis such that it becomes the duty of the Supreme Court to strike it down as violative of the U.S. Constitution. Lawrence was troubling, with far-reaching ramifications.
What does Lawrence have to do with the marriage amendment? A great deal, unfortunately. If the Supreme Court were to hold that marriage should no longer be limited to a union of a man and a woman and a court finds as they did in Lawrence that such is required by some word or phrase in the Constitution, than any Federal law, such as DOMA, or any State constitutional provision--we are voting on one in Alabama today to protect marriage, and I assure you it is going to pass--but any State constitutional provision would be erased from the books, held for naught, and struck down if found to be in violation of the Constitution because the Constitution is the supreme law of the land and its provisions trump all other laws and State constitutional provisions.
In Lawrence, the U.S. Supreme Court used very broad language that by fair deduction would suggest that the majority's reasoning would be supportive of redefining marriage. While not denying the logic of this possibility, the Court in its opinion in dicta did note that Lawrence ``does not involve whether the government must give formal recognition to any relationship that homosexual persons seek to enter.''
So the facts did not involve that, but the opinion did not deny that this same reasoning could be used in the future in cases such as the Massachusetts marriage case. It was obvious, of course, that the issue of same-sex marriages was not before the Court in Lawrence, but they were aware of that.
Justice Scalia was not beguiled by this language. His brilliant dissent went right to that point, and it is the issue before us today. Justice Scalia aptly stated:
This case ``does not involve'' the issue of homosexual marriage only if one entertains the belief that principle and logic have nothing to do with the decisions of this Court.
It doesn't involve the issue of homosexual marriage only if logic and principle have nothing to do with the opinions of the Court. What he is saying quite plainly is, following the logic and principle of the opinion in Lawrence, marriage, as we know it, is in jeopardy today, and he dissented. Justice Scalia is a brilliant jurist. He loves the law and believes in being faithful to the law as written, not as he may wish it to be.
This debate in the Senate about activism is important. It is a debate that was raised aggressively in recent elections in Senate races and the Presidential election. President Bush said he admired Justice Scalia and he wanted more judges on the Court such as Justice Scalia.
Justice Scalia's dissent reflects one of the critical issues that highlight the difference between an activist judge and one who is respectful of the people's branch of Government, the legislative branches of Federal and State government.
In large part, the Massachusetts marriage case and Lawrence v. Texas are the kinds of rulings that have caused so much controversy, rulings where a slim majority of an aging group of justices--four maybe in some courts, five on the U.S. Supreme Court--allow personal views on some subject to cloud their thinking to such an extent that they delve into the Constitution in order to find some phrase they can use to impose that view on the people, all the while insisting they are merely following the commands of the Constitution.
In fact, our Supreme Court Justices have created a double standard. They have plainly held that the legislative branches--the Congress, our State legislatures--elected by the people, cannot base a law on an established, objective moral code, but they--the enlightened judicial branch, the one branch of our Government unaccountable to the people--may strike down congressionally passed laws if the Justices conclude that the legislative laws do not comply with what the judges find are ``evolving standards of decency.''
``Evolving standards of decency'' is a phrase activist judges often use, and it can mean anything. Who can say what that means? ``Evolving standards of decency'' is not a proper legal standard. It lacks the precision needed for a legal standard. It is, in fact, not a standard
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at all. In truth, it is a license to the court. It can allow as few as five Supreme Court Justices to roam the world to find European law or some other foreign law or some study or some report which they base their opinion upon.
The PRESIDING OFFICER. The Senator's time has expired.
Mr. SESSIONS. I thank the Chair. I ask unanimous consent for 5 more minutes.
Mr. CARPER. Mr. President, I will have to object to that. I agree to 1 more minute.
The PRESIDING OFFICER. The Senator from Alabama is recognized for 1 more minute.
Mr. SESSIONS. Mr. President, I would just say this: that we are at a point in our history where it is now the opportunity of this Senate to allow the American people an opportunity to have their views heard on the question of the definition of marriage. It has been eroded by courts improperly, in my view, but it is being eroded nevertheless. By voting for this constitutional amendment, we will not make any constitutional amendment become a reality. We will simply send the matter to the States. And if three-fourths of the State legislatures agree, only then will this amendment become law. Why would we want to deny the American people the right through their representatives to adopt this amendment? I do not know, and I do not think we should. I think we should support the amendment.
How should the people properly respond to this real or perceived abuse and, in particular, to this very real threat to traditional marriage?
The proper answer is for the people to ask their elected representatives to pass a constitutional amendment to fix the problem, or the potential problem.
It is the right way, the lawful way, for the people and the Congress to respond.
Amazingly, it has been suggested by those who oppose the right of the people to have their voice heard on this matter, that the Marriage Protection Act violates the Constitution. How silly is that? The Marriage Protection Act would become a part of the Constitution. How could it violate the Constitution?
More importantly, the court rulings that have created this crisis are themselves, in my view and the view of many, contrary to the Constitution. Regardless of whether such rulings are sound, the people have a right to have their voice heard on the matter of marriage.
Some here argue that we should not have an amendment that decides the question here in the Senate but should allow the States to do it. But, that is the problem.
The States, and the people, are having their decisions overturned by courts. On May 16, a Georgia judge struck down that State's law that prohibits same-sex marriage. At least nine States are facing similar lawsuits. And if Lawrence is any indication, the U.S. Supreme Court seems poised to make a similar ruling.
This is why the American people are rightly concerned and want us to do something to stop this trend by the undemocratic branch of government from altering marriage, a cornerstone of our civilization.
Of course, if this Congress were to pass the Marriage Protection Amendment, it does not then become law. It then would go to the States where three-fourths of the State legislatures would have to agree, for it to become part of our Constitution.
Thus, our vote today is the key step in allowing the States to express the will of their people.
Thus vote against the Marriage Protection Amendment by those who say they oppose same-sex marriage, would deny the States the authority they need to protect their laws from judicial activism.
Finally, some argue that marriage is not an issue of such importance that it should be placed in our Constitution or even have debate time allotted to it. They are wrong. This is a huge issue, one of great importance. The real question is, why deny the right of the American people through their legislatures the right to vote on this issue? What harm is there in letting the people speak? I suspect the real concern of many is that if this amendment were to get to the States, it would pass. Those who openly or surreptitiously favor same-sex marriage surely would not want the Marriage Protection Amendment to go to the States.
And, there is nothing unusual about constitutional amendments that address specific problems.
We have passed amendments that are quite specific as well as broad.
The 27th amendment, ratified May 27, 1992, provides that Congress can't raise the pay of members of the House or Senate until the next election in the House.
The 26th amendment, ratified July 1, 1971, provides that eighteen-year-olds must be allowed to vote.
The 25th amendment, ratified February 10, 1967, provides for presidential succession.
The 24th amendment, ratified January 23, 1964, abolished the poll tax.
To my mind, the Marriage Protection Act is a wonderful way to allow the American people to have their voices heard on a matter that is very important to them and our Nation.
The courts have gotten it wrong. Wrong as a matter of law and wrong as to policy. They are not higher beings. They make mistakes and they need to be held to account so that good law and good policy are restored. A narrowly drafted constitutional amendment that deals with this one, single issue, is the proper way to give legitimate voice to our citizens.
The traditional understanding and law of marriage are being overturned. The sounds of the conflict can be heard in Lexington and in Omaha. Why stand we here idle? Let's authorize the Marriage Protection Amendment to go to the States so the people's will may be accomplished. After all, our founders created a democracy, not an oligarchy.
I yield the floor.
