STATEMENT OF SENATOR EDWARD M. KENNEDY ON “WHAT IS NEEDED TO DEFEND THE BIPARTISAN DEFENSE OF MARRIAGE ACT OF 1996?” AT THE SENATE SUBCOMMITTEE ON THE CONSTITUTION, CIVIL RIGHTS AND PROPERTY RIGHTS

September 4, 2003

FOR IMMEDIATE RELEASE

In June, in its landmark decision in Lawrence v. Texas, the Supreme Court struck down a Texas law that made homosexual conduct a crime. In a powerful and eloquent opinion, the Court made clear that discrimination against gay and lesbian people in state criminal laws is prohibited by the Fourteenth Amendment to the Constitution.

Predictably, the Court's decision has been denounced by some of our colleagues in Congress. The Republican Policy Committee in the Senate recently published a paper declaring that the decision "gave aid and comfort" to "activist lawyers" who seek to "force same-sex marriage on society through pliant, activist courts." Only an amendment to the Constitution, the report states, can prevent this result.

The Constitution is the foundation of our democracy. It reflects the enduring principles of our country. Notwithstanding the views of some of my Republican colleagues, the Constitution does not need a makeover.

We have amended the Constitution only seventeen times in the two centuries since the adoption of the Bill of Rights. Aside from the Amendment on Prohibition, which was quickly recognized as a mistake and repealed thirteen years later, the Constitution has only been amended to expand and protect people's rights, not to take away or restrict their rights. The proposed Federal Marriage Amendment is inconsistent with our constitutional tradition and our constitutional values.

We know that some are legitimately concerned that the government may somehow interfere with the ability of their churches and religious groups to conduct their own affairs. Religious marriage is an ancient institution, and nothing in the Constitution requires any religion to accept same-sex marriage.

The separation of church and state under the First Amendment is not affected in any way by the Court's decision. If this hearing accomplishes anything, it should make this point completely clear: under our current Constitution, no court can tell any church or religious group how to conduct its own affairs. Unless the Constitution is amended, no court will ever be able to require any church to perform or grant sacramental status to a same-sex marriage.

The law of each state is what determines the legal and civil effects of marriages or civil unions. The law of each church is what determines the religious aspects and ramifications of a sacramental marriage. Those who are concerned about preserving particular religious ceremonies and religious marriage should have no doubt whatsoever about the principle of religious freedom established by the Constitution. It makes no sense to undo our basic constitutional principles though an ill-advised and unnecessary amendment.

Far from upholding religious freedom, the proposed amendment would undermine it, by telling churches that they can't consecrate same-sex marriages, even though some churches are now doing so. Last month, the General Convention of the Episcopal Church recognized "that local faith communities are operating within the bounds of our common life as they explore and experience liturgies celebrating and blessing same-sex unions." The proposed constitutional amendment would blatantly interfere with the decisions of local faith communities and would threaten the longstanding separation of church and state in our society.

The amendment would also undermine the nation's commitment to treating all citizens equally under the law. According to a study by the General Accounting Office in 1997, over 1,000 benefits, rights, and protections are provided on the basis of marital status in federal law. These rights include the right to file joint returns under the tax laws, to share insurance coverage, to visit loved ones in the hospital, and to receive health, family leave, and survivor benefits.

Advocates of the Federal Marriage Amendment claim that it would not prevent states from granting some legal benefits to same-sex couples. But that's not what the proposed amendment says. By forbidding same-sex couples from receiving "the legal incidents of marriage," the amendment would repeal many existing state and local laws, including laws that deal with domestic partnerships and laws that have nothing to do with such relationships.

Just as it's wrong for a state's criminal laws to discriminate against gays and lesbians, it is wrong for a state's civil laws to discriminate against gays and lesbians by denying them the many benefits and protections provided for married couples. The proposed amendment would prohibit states from deciding these important issues for themselves. This nation has made too much progress in the ongoing battle for civil rights for gays and lesbians to take such an unjustified step backwards.

We all know what this hearing is about. It's not about how to protect the sanctity of marriage, or how to deal with "activist judges." It's about politics – an attempt to drive a wedge between one group of citizens and the rest of the country, solely for partisan advantage. We have rejected that tactic before, and I hope we will do so again. Many of us on both sides of the aisle have worked together to expand and defend the civil rights of gays and lesbians. Together, on a bipartisan basis, we have fought for a comprehensive federal prohibition on job discrimination on the basis of sexual orientation. We have worked to expand the existing federal hate crimes law to include hate crimes based on this flagrant form of bigotry.

I hope that we can all agree that Congress has more pressing business to consider than a divisive, discriminatory constitutional amendment that responds to a non-existent problem. Let's focus on the real issues of war and peace, the economy, and the many other priorities that demand our attention so urgently in these troubled times.

Press Contact

Stephanie Cutter (202) 224-2633

• Print this Page
• e-Mail this Page
• Respond to this page

• Home > 
• Newsroom > 
• Press Releases >