Marriage Amendment, Like Terry Schiavo, is GOP Shot at Political Points

(AS PREPARED FOR DELIVERY ON SENATE FLOOR)

It’s no surprise that the American people are frustrated with the Republican Senate these days. They deserve and want action on the enormous challenges we face as a nation – the endless and costly war in Iraq, the many dangers to our national security, skyrocketing gas prices, soaring health-care costs, the upcoming hurricane season. How we can have safer schools and better care for our children, and so many other urgent issues. But instead of dealing with these real priorities, the Senate Republican leadership is asking us to spend time writing bigotry into the Constitution.

Why aren’t we taking up the Defense Authorization Bill, which is so vital to our national security? It provides the authorization for the salaries for our troops in the field, including a 2.2% pay raise. It provides urgently needed equipment for our troops to carry out their missions in humvees with safer body armor. It authorizes the food and supplies our troops need in Iraq and Afghanistan. It contains funds to care for those who are injured or wounded, or who may be suffering from Post Traumatic Stress Disorder when they come home. But the Republican leadership of the Senate has told us that supporting our troops has to wait.

Let’s be clear about what this debate is really about. It’s a blatant effort to deny some members of our society the right to receive the same benefits and protections that married couples now have. Like this Senate’s intrusion into the Terry Schiavo case, it is a cynical attempt to score political points by overriding state courts and intruding into individuals’ private lives and most personal decisions. It’s the politics of prejudice and division at its worst.

Make no mistake – a vote in support of this amendment has nothing to do with the "protection of marriage." A vote for it is a vote against civil unions, against domestic partnerships, and against all other efforts by states to treat gays and lesbians fairly under the law. It’s a vote to impose discrimination on all 50 states, and to deny them their right to write and interpret their own state constitutions and state laws. It’s a vote to deny states the right to define what marriage equality means.

Marriage is a solemn commitment to plan a future together, to share in life’s celebrations, to be there as a source of comfort to ease life’s burdens and pains. This impacts real families with real-life struggles. When the citizens of a state have decided to recognize those families -- through their state constitution or state laws -- the Senate has no business undermining their personal, private decisions.

Some even claim that our recent action in Massachusetts is a threat to the rest of the nation. Over 8,000 couples have celebrated their commitment to each other since our Supreme Judicial Court ruled that the state constitution requires marriage equality.

In ruling to allow same-sex marriage, our state’s Supreme Judicial Court was interpreting the Massachusetts Constitution, not the U.S. Constitution. The court ruled that our state’s Constitution forbids the creation of second-class citizens. It concluded that the state could not deny the protections, benefits and obligations of civil marriage to two individuals—regardless of gender—who wish to marry.

Far from being a right created—as our opponents like to say—by activist judges, the right of all our citizens to have equal treatment under Massachusetts state laws was granted and approved by the people of Massachusetts when they voted on and adopted our State Constitution. The people said that our state’s Constitution forbids the creation of second-class citizens, and our courts affirmed equality for all.

In Massachusetts, civil marriage brings all the benefits of a marriage license – and equal status under the marriage laws, which touch upon nearly every aspect of life and death. In addition to all the intangible benefits of marriage, a civil marriage is a contract -- it grants valuable property rights – protection against creditors and the automatic entitlement to the property of their spouse’s estate when he or she dies.

Under state laws in Massachusetts and many other states, marriage confers property rights. And the specific property rights vary from state to state. Some states have a community property regime. Others, like Massachusetts, do not.

But it has always been a bedrock principle of our form of government that the kind of state property rights flowing from a civil marriage contract is a matter of state law, not federal law. And the laws governing the property rights of a married couple have always varied from state to state.

For example, a couple married in Louisiana will have all property owned in that state subject to the community property laws of that state. But if they own property in another state, that property is governed by the laws where the land is owned.

Now some of our colleagues want to federalize the rights flowing from civil marriage and overrule individual state laws. How odd that the same people who oppose federal regulation in almost every other area now want a federal constitutional amendment to eviscerate state contract and property laws, but only when they grant benefits to same sex couples. That is discrimination, and it’s wrong.

In Massachusetts, marriage - and the stability and security it brings to families -- is alive and well. Indeed, Massachusetts has the lowest divorce rate in the nation. We’re having plenty of public debate and democratic process. The sky is not falling. Indeed, even the Boston Herald editorial page called this week’s Senate debate what it really is – "pandering on a hot-button issue."

I’m proud that Massachusetts continues to be a leader on marriage equality. Being part of a family is a basic right, and I look forward to the day when every state accepts this basic principle of fairness.

Obviously, those who disagree with Massachusetts law have a First Amendment right to express their views. But there’s no justification for undermining the separation of church and state in our society, or for writing discrimination into the U.S. Constitution.

Supporters of the amendment claim that religious freedom is somehow under attack. It is – but the attack comes from this Federal Marriage Amendment – not from what’s happening in the states. This amendment is an Anti-Marriage Amendment. It tells churches they cannot recognize a same-sex marriage, even though many churches are now doing so.

No church in Massachusetts is required to recognize any civil marriage. Indeed, my own Catholic Church does not recognize most post-divorce second marriages between a man and a woman, and that’s their legal prerogative. By the same token, they are not required to recognize same sex marriages. The law of each church is what determines the religious aspects of a sacramental marriage. But the law of the states is what determines the civil aspects and property rights flowing from a marriage contract.

We cannot – and should not – require any religion or any church to accept any marriage as sacramental. That’s up to the particular religion. But it is wrong for our civil laws to deny any American the basic right to be part of a family, to have loved ones with whom to build a secure future and share life’s joys and tears, and to be free from the stain of bigotry and discrimination.

According to the 2000 Census, same-sex couples live in virtually every county in the country. That’s almost 600,000 households. Nearly one-quarter of these couples are raising children. That’s an estimated 8 to 10 million children being raised in gay and lesbian partnered homes. As many as 14 million children in America have a gay or lesbian parent.

Despite these growing numbers, many here in the Senate want to deprive these men and women – these children – and their families – of the legal protections and benefits associated with marriage. These families stand up to private bigotry and prejudice in their ordinary activities - why would the federal government make their lives harder by writing discrimination into the Constitution? It’s wrong for Congress to add another burden to these families already struggling to live their lives and take care of each other.

The General Accounting Office has identified 1,138 protections and benefits provided by the federal government on the basis of marital status. Many of these are laws relating to family and medical leave, social security benefits, and tax benefits. Gay and lesbian couples deserve the same rights as married couples, including the right to be treated fairly by the tax laws, to share insurance coverage, to visit loved ones in the hospital, and to have health benefits, family leave benefits, and the many other benefits that automatically flow from marriage.

Supporters of the Federal Marriage Amendment claim the need to stop activist judges. Our colleagues should recall the words of another activist court:

"The freedom to marry has long been recognized as one of the most vital personal property rights essential to the orderly pursuit of happiness."

The activist judges stating this fundamental belief were part of the Supreme Court’s 1967 decision in the landmark case Loving v. Virginia, which held that marriage is a basic civil right, and that freedom to marry a person of another race may not be restricted by racial discrimination.

Now, nearly forty years later, I urge the Senate not to turn back the clock on this progress, or start writing discrimination into our country’s most cherished document. The framers never wanted it to be used for short-term political games – that’s why it is so difficult to amend. As Chief Justice John Marshall said, the Constitution is "intended to endure for ages to come."

Two years ago, we defeated a disgraceful attempt to force this right wing agenda into the Constitution and we're prepared to do so again. There is too much at stake to let the politics of bigotry prevail. I urge the Senate to reject this so-called Federal Marriage Amendment, and get back immediately to the real business of the nation. Save the pandering for right wing supporters on the campaign trail.