Federal Marriage Amendment

FEDERAL MARRIAGE AMENDMENT-MOTION TO PROCEED

Ms. COLLINS. Mr. President, I rise to speak on S.J. Res. 40, the Federal Marriage Amendment to the Constitution. Let me begin my remarks by plainly stating my position on the issues raised by this amendment.

First, it is my strong personal belief that marriage is between a man and a woman. Second, principles of federalism dictate that the right and the responsibility to define marriage belong to the States. Third, the proper role of the Federal Government is to ensure that each State can exercise that right and responsibility by preventing, as the Defense of Marriage Act does, one State from imposing its view on others.

The amendment under consideration would potentially affect two types of relationships that are fundamental to our society. The first is the union between a man and a woman. The second is the compact between the States and the Federal Government. In our zeal to protect the former, we must not do unnecessary violence to the latter, as it is the bedrock of our country's unique and highly successful Federal system.

We also must not overreact to the decision of a single court in a single State by rushing to amend the Constitution and stripping away from our states a power they have exercised, wisely for the most part, for more than 200 years. Let us remember that no State legislature has sanctioned same-sex marriage. Nor has there been a popular referendum to that effect in any State. Indeed, this amendment is a response to a single court decision-and a 4-3 decision at that. If just one judge on the Massachusetts court had a different view of this issue, we would not be contemplating the dramatic action of amending the Constitution.

Put differently, where is the evidence that we cannot trust the States in this area? More than 40 States have enacted laws or Constitutional amendments that expressly limit marriage to the union of one man and one woman. Maine law explicitly states that "[p]ersons of the same sex may not contract marriage," and further provides that Maine will not recognize marriages performed in other jurisdictions that would violate the legal requirements in Maine. Thus, even if lawfully performed in another State, a same-sex marriage will not be valid in Maine.

In short, I respect the right of the people of Maine and the citizens of other States to define marriage within their boundaries. Were I a member of the Maine legislature, I would vote in favor of a law limiting marriage to the union of one man and one woman.

This does not mean that Congress can play no role in this area. To the contrary, Congress has two very important roles. The first is to protect the right of each State to define marriage within its own borders, and the second is to define marriage for Federal purposes.

To its credit, Congress did both of these when it enacted the Defense of Marriage Act, or DOMA, in 1996. Signed into law by President Clinton, DOMA enjoyed broad, bipartisan support in both chambers of Congress, passing by a margin of 85-14 in the Senate and 342-67 in the House. The statute grants individual states autonomy in deciding how to recognize marriages and other unions within their borders, and ensures that no State can compel another to recognize marriages of same-sex couples. Of equal importance, DOMA defines marriage for Federal purposes as "the legal union between one man and one woman as husband and wife." I strongly endorse both of the principles codified by DOMA, and should legislation come before the Senate reaffirming DOMA, I would vote without reservation to support it.

Even though DOMA has not been successfully challenged during the 8 years since its enactment, many supporters of the Federal marriage amendment point to the Supreme Court's recent decision in Lawrence v. Texas as presaging DOMA's ultimate demise on Constitutional grounds. They argue that DOMA's vulnerability necessitates approving the amendment under consideration.

I reject that argument for two reasons. First, the conclusion that DOMA is inevitably destined to die a Constitutional death is inconsistent with language in the Lawrence decision. In striking down a Texas statute criminalizing certain private sexual acts between consenting adult homosexuals, the majority opinion written by Justice Kennedy was careful to note that the case before the Court:

. . . does not involve whether the government must give formal recognition to any relationship that homosexual persons seek to enter.

In her concurring opinion, Justice O'Connor was even more explicit when she observed that the invalidation of the Texas statute:

. . . does not mean that other laws distinguishing between heterosexuals and homosexuals would similarly fail. . .
.Unlike the moral disapproval of same-sex relations-the asserted state interest in this case-other reasons exist to promote the institution of marriage beyond mere moral disapproval of an excluded group.

These statements persuade me that the Supreme Court is, in fact, unlikely to strike down DOMA.

Second, even if DOMA is eventually invalidated, the answer is not to abandon our principles of federalism but rather to enshrine them in the Constitution. Thus, if we ultimately have to address this matter as a Constitutional issue, and we should do so only as a last resort, it should not be to strip the States of the right to define marriage but rather to expressly validate a role they have been playing for more than 2 centuries.

Let me end where I began. This amendment is not just about relationships between men and women but also about the relationship between the States and the Federal Government. I would not let a one-vote majority opinion of a single state court lead us to ascribe to Washington a power that rightfully belongs to the states. To the contrary, our role should be to safeguard the ability of each State to exercise that power within its own borders.