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Same-sex Marriage -- Floor Speech by Senator John Cornyn
May 14, 2004 - Mr. CORNYN. Mr. President, on May 17th, this Monday, the State of Massachusetts will begin to issue marriage licenses to same-gender couples so they may marry.
This rather surprising development – particularly for those who have not been following the events in Massachusetts over the last few months – is not the result of the vote of the people of Massachusetts. Once a court decision – which I will speak more about in a moment – was handed down, which compelled State officials and local officials to issue these licenses to same-gender couples, there was an attempt made to amend the Massachusetts Constitution. The first step in a three-step process has been accomplished and if that constitutional amendment is ultimately passed in 2006, it will ban same-sex couples from marrying.
But because of the structure of the constitutional amendment process in Massachusetts, the court order takes effect Monday, May 17th. Essentially the people of Massachusetts are left out of governing themselves. They have been subjected to a court edict and their views considered irrelevant.
When we held the first of three Judiciary subcommittee hearings on this issue last September, that was before the Massachusetts Supreme Court had made this ruling. It was a 4-3 decision, holding that the Massachusetts Constitution barred any restriction on marriage license issuance to exclusively one man and one woman.
The issue that we raised last September was, Is the Federal Defense of Marriage Act in jeopardy? We had witnesses on both sides, some of whom concluded yes, it was, and some who concluded no, it probably was not. I suggest the passage of time has proved the accuracy of the prediction of those who said yes, it is in jeopardy – that their views seem to be correct, while those who say no, it is not, appear to be wrong.
Because the Massachusetts Supreme Court is the only state supreme court in the Nation that has ruled marriage licenses must be issued to same-sex couples, there are many people, many well-intentioned people who say this is a local issue, and others – perhaps not being as informed as they might be about constitutional law – say this is surely only going to be confined to one State. They say that this is an issue that ought to be handled on a State-by-State basis and requires no action by the Federal Government or by our elected officials in Congress.
I submit the evidence is becoming increasingly clear this is not a local phenomenon, nor is this a matter that can be addressed on a State-by-State basis. This is a national issue that requires a national response.
As we all recall, shortly after the decision in Massachusetts, the mayor and other officials in the city of San Francisco began issuing marriage licenses to same-sex couples in that city – not just people who lived in that city but people who traveled to that State from other States. The New York Times has reported in at least 46 cases out of those several thousand illegal marriages, that took place in defiance of California State law – there is the potential now for lawsuits in 46 states filed by those individuals who were married in San Francisco who then moved back to their State of residence. In all but four states, the seeds are there for lawsuits to be filed by couples demanding that the court compel their State to recognize the validity of same-sex marriage.
In addition, there are lawsuits that are pending now in Nebraska, in Utah, and most recently in Florida, asking the court to hold as a matter of Federal constitutional law that restrictions on marriage only as between a man and a woman violate the Federal Constitution.
It is important to look back at what the first signal was that traditional marriage was in jeopardy when it came to the courts. It goes back to a decision made by the U.S. Supreme Court in a case called Lawrence v. Texas. This was a case that struck down the anti-sodomy provisions of Texas law. The most remarkable thing about that decision is not the result, it was how the Court got to that result. Indeed, as many predicted, the Court overruled the decision in Bowers v. Hardwick, which upheld the anti-sodomy law of Georgia years ago. But in this case, the Court not only struck it down on an equal protection basis – Justice Kennedy, writing for the Court, created a new constitutional right: To be free in one's intimate sexual and personal relationships, such that he held the Constitution now prohibited any sort of restriction by legislation or by official policy on those intimate relationships between adults.
Indeed it was predicted at that time, I believe it was Justice Scalia in dissent, who said this was the first step toward a ban on traditional marriage. Lawrence v. Texas was a Federal constitutional decision that was one of the bases upon which the Massachusetts Supreme Court interpreted its State constitution to require same-sex marriage in that State, a rather ominous succession of events. It is an ominous situation for those of us who support traditional marriage and believe it is important to our society and to our children.
Now, there are those who want to say this debate that has ensued over same-sex marriage is designed to be hurtful or harmful to those who might take advantage of the opportunity to marry same-sex couples. I want to make clear that is not true. I believe that Americans instinctively believe in two fundamental propositions: First, we believe in the essential worth and dignity of every human being. Yet at the same time, we also believe in the importance of traditional marriage.
It is no accident that it was not until 224 years after the Massachusetts Constitution was written and ratified, in 1780, that an activist supreme court mandated same-sex marriage in Massachusetts, contrary to the wishes and the will of the people of that State. As I say, now this is not just a local issue, nor a State issue; indeed, this is a Federal issue, requiring a Federal national response.
So in all sincerity, I reiterate that those of us who argue in favor of a remedy to ensure the protection of traditional marriage do not do that with intent to disparage anyone personally. But we do believe that traditional marriage is a positive good for our society, as the most stabilizing and positive influence on family life in this country, as well as being in the best interests of children.
The fundamental question we are going to have to address, sooner or later, is who will define marriage in the United States? Will it be the American people, or will it be activist judges who are reading a newly found right into a Constitution that for the last 200 or more years has not included that right, or at least it was a right that went undiscovered by activist judges prior to this time? Put another way, the question is, are the deeply held convictions of the American people when it comes to the importance of traditional marriage irrelevant?
I suggest to you the answer is no – unless, of course, we are giving up, after all this time, on what Lincoln called "government of the people, by the people, and for the people."
So the question is, what do we do? What do the overwhelming majority of the people in the United States of America do, those who believe in the fundamental importance of traditional marriage for the stability of families and for the best interests of our children? What are we to do to respond?
Well, the majority of States have responded but I would suggest to you in a way that does not protect them anymore when it comes to the definition of traditional marriage. And that is, a majority of the States, back in the middle of the 1990s, passed what are called defense of marriage acts, which defined marriage as exclusively an institution between one man and one woman.
Congress itself, as a matter of Federal policy, passed the Federal Defense of Marriage Act in 1996. Overwhelming bipartisan majorities in the House and the Senate voted to pass the Defense of Marriage Act. But it is that very statute, that very law, that very expression of the national will that has now been challenged most recently in a Florida Federal district court, claiming that the Federal Defense of Marriage Act violates the U.S. Constitution as interpreted by the U.S. Supreme Court in Lawrence v. Texas.
The only response I know of, to judges who are basically making the law up as they go along, or trying to write their own personal or social agenda into the Constitution and to deny the American people the fundamental right of self-government, is a constitutional amendment. I know – and we all know – the American people have been historically reluctant to amend our Constitution. In fact, it is only happened 27 times in our history. But it is important to recognize, at the same time, that there is written into that very same Constitution a mechanism, under article V, which allows two-thirds of the U.S. Congress to vote on an amendment, which is then ratified by three-quarters of the States. This allows the American people to retain their fundamental right to determine what kind of nation America is and what kind of nation it will become, even against a judiciary run amok.
There are those I respect a great deal in this body and elsewhere who would suggest that the Constitution is sacrosanct. Indeed, we put our hand on the Bible and we pledged to uphold the Constitution and laws of the United States when we were sworn into this body. But I submit that we take an oath to the whole Constitution, not just part of it, including article V, which provides a procedure for amendment so that the Constitution can continue to reflect the will of the American people.
I suggest to you that the Constitution is not a holy covenant to be interpreted or amended by nine high priests on the U.S. Supreme Court. These judges do not have the exclusive rights to the Constitution. We, the American people, do. And sometimes – and this may very well be one of those times – it may be necessary for the American people to reclaim their right to determine what kind of nation we are and what kind of nation we will become, particularly when it comes to an issue as fundamental as traditional marriage. If, out of ignorance or apathy, we sacrifice our right to self-government, we have allowed the very nature of our Nation to be altered, and that would be very tragic indeed.
So I say in conclusion: this is a very serious matter. It ought to be discussed rationally and seriously in a dignified and civil manner, with enmity toward none, but with a desire on the part of the American people, who believe in the importance of traditional marriage and its benefit to our society – we ought not to be afraid to stand up and say so. Nor should we be deterred by those who might be less civil, be less dignified and less temperate in their remarks. Indeed, we know that can occur.
But it is my hope that as we go forward, and particularly as we mark this watershed event in America's history on Monday, May 17, with the issuance of marriage licenses to same-sex couples in Massachusetts by virtue of court edict and not a vote of the people. This is a matter that will not go away, and ultimately the American people will insist that we deal with it.
Mr. President, I yield the floor.
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