Senate Fails to Bring to a Vote an Amendment
to the Constitution of the United States Relating to Marriage
Immediate Release. July 15, 2004 - Rejecting pleas from President George W. Bush and conservatives, the Senate Joint Resolution (S.J. Res.40) on the Constitutional amendment on marriage was defeated on July 14, 2004, by a 48-50 vote when the Senate failed to bring debate to a close or what is called the “Cloture vote” which requires 60 votes to force a vote on the amendment. The fate of the amendment was doomed when six Republicans joined dozens of Democrats.
“First and foremost what must be established in the debate on marriage is that same-sex marriage is an oxymoron,” said Dr. Joel P. Rutkowski, president of the American Voice Institute of Public Policy. He added, “ Furthermore, during the debate on the Constitutional amendment on marriage by the Senate, it was disconcerting as well as disheartening to see many Republicans who tout that they represent a party that is for family and values apologize for this amendment by suggesting that civil unions be included in the language of this amendment. It is a sad day for this nation when its leaders cannot condemn such immoral behavior as same-sex unions or partnerships as being morally wrong. America will continue its spiral of moral decay as long as deviant behavior of both homosexuals and heterosexuals is accepted and promoted. Reinforcement of deviant behavior hurts families as well as individuals and continues to erode at the Judeo-Christian principles that have been championed by the Founders and Americans for 228 years.”
Same-sex marriage has been brought into the federal arena as a result of the Supreme Court's ruling in Lawrence v. Texas and the Massachusetts Supreme Judicial Court's decision to legalize same-sex unions. A Constitutional amendment to ban same-sex unions is not the best approach to resolve this issue because the amendment language must first be approved by two-thirds of each Congress, then must be ratified by legislatures in at least 38 states within the next seven years. That means that 16 Democrats in the Senate would have to support this amendment, even if every Republican senator voted for S.J. Res. 40. And, in addition to a unanimous Republican vote in the House of Representatives, some 60 Democratic votes would also be required to support it.
Furthermore, a Constitutional amendment to ban same-sex unions though well intended faces a higher series of obstacles if passed by the Congress and allowed to proceed to the states. For example, by either no vote or by rejecting it, any 13 state legislatures can defeat it. Thus, an amendment favored by as many as 98 percent of the population could theoretically be killed by two percent of the American people, strategically distributed in 13 small states. And, it would be of little difficulty to do so by a small energized minority. As a result of this those who would claim popular support for same-sex unions losing a fight over the Constitutional Amendment on Marriage, which is virtually certain, would only enshrine these pseudo-marriages.
What would be more effective is if the current Congress would enact a marriage privilege protection statute that would allow immediate action to protect traditional marriage instead of the lengthy process of ratifying a Constitutional amendment on marriage. For states or local officials acting “under color of law” to issue a marriage license to individuals of the same sex, a federal marriage privilege protection measure would make it a criminal offense. The Fourteenth Amendment, supported by the Republican Guarantee clause (S. 4 of Art. IV) and The Necessary and Proper clause (par. 18, S. 8 of Art I) gives Congress the Constitutional authority if it were to pass this measure.
What this would do is bring to the forefront the issue of same-sex marriage. Unfortunately, as it has already done, incumbents would be allowed to obscure their position by the long delay that is associated with getting an amendment through Congress. To vote on divisive issues such as homosexual marriage, neither Republican nor Democrat lawmakers are inclined to do so. The rhetoric has already started. For example, some in both parties have said they support traditional marriage, but have found a multitude of objections to the amendment such as altering the Constitution which should not be tampered with to decide the issue, the need for more time, and such matters should be left to individual states to decide are just a few. On the other hand, a marriage privilege protection statute would prevent the party division between Republicans and Democrats from being buried in platform statements because every senator's and representative's vote would be on record. [To view how your senators voted visit: Motion to Invoke Cloture on the Motion to Proceed to Consider S. J. Res. 40 .]
Joel P. Rutkowski, P.h.D.
President, The American Voice Institute Of Public Policy
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