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MARRIAGE AMENDMENT ROLL CALL

The 50-48 roll call by which the Senate blocked a constitutional amendment to ban gay marriage. Supporters of the amendment fell 12 votes short of the 60 they needed to advance the bill.

On this vote, a "yes" vote was a vote to advance the measure and a "no" vote was a vote to stop it. Voting "yes" were 3 Democrats and 45 Republicans. Voting "no" were 43 Democrats, 6 Republicans and 1 Independent. X denotes those not voting.

Democrats Yes:

Byrd, W.Va.; Miller, Ga.; Nelson, Neb.

Democrats No:

Akaka, Hawaii; Baucus, Mont.; Bayh, Ind.; Biden, Del.; Bingaman, N.M.; Boxer, Calif.; Breaux, La.; Cantwell, Wash.; Carper, Del.; Clinton, N.Y.; Conrad, N.D.; Corzine, N.J.; Daschle, S.D.; Dayton, Minn.; Dodd, Conn.; Dorgan, N.D.; Durbin, Ill.; Feingold, Wis.; Feinstein, Calif.; Graham, Fla.; Harkin, Iowa; Hollings, S.C.; Inouye, Hawaii; Johnson, S.D.; Kennedy, Mass.; Kohl, Wis.; Landrieu, La.; Lautenberg, N.J.; Leahy, Vt.; Levin, Mich.; Lieberman, Conn.; Lincoln, Ark.; Mikulski, Md.; Murray, Wash.; Nelson, Fla.; Pryor, Ark.; Reed, R.I.; Reid, Nev.; Rockefeller, W.Va.; Sarbanes, Md.; Schumer, N.Y.; Stabenow, Mich.; Wyden, Ore.

Democrats Not Voting:

Edwards, N.C.; Kerry, Mass.

Republicans Yes:

Alexander, Tenn.; Allard, Colo.; Allen, Va.; Bennett, Utah; Bond, Mo.; Brownback, Kan.; Bunning, Ky.; Burns, Mont.; Chambliss, Ga.; Cochran, Miss.; Coleman, Minn.; Cornyn, Texas; Craig, Idaho; Crapo, Idaho; DeWine, Ohio; Dole, N.C.; Domenici, N.M.; Ensign, Nev.; Enzi, Wyo.; Fitzgerald, Ill.; Frist, Tenn.; Graham, S.C.; Grassley, Iowa; Gregg, N.H.; Hagel, Neb.; Hatch, Utah; Hutchison, Texas; Inhofe, Okla.; Kyl, Ariz.; Lott, Miss.; Lugar, Ind.; McConnell, Ky.; Murkowski, Alaska; Nickles, Okla.; Roberts, Kan.; Santorum, Pa.; Sessions, Ala.; Shelby, Ala.; Smith, Ore.; Specter, Pa.; Stevens, Alaska; Talent, Mo.; Thomas, Wyo.; Voinovich, Ohio; Warner, Va.

Republicans No:

Campbell, Colo.; Chafee, R.I.; Collins, Maine; McCain, Ariz.; Snowe, Maine; Sununu, N.H.

Others No:

Jeffords, Vt.

The two Republican senators from Arizona voted on opposite sides:

With the Senate expected to vote on the amendment as early as Wednesday, Republican Sen. Jon Kyl will vote for the amendment and Republican Sen. John McCain will vote against it, spokesmen said Monday.

Kyl and McCain were on the same side of the gay-marriage issue in 1996 when Congress passed - and former President Clinton signed - the Defense of Marriage Act. That statute said marriage under federal law could refer only to the relationship between a man and a woman and that no state was required to recognize action in another state to allow same-sex marriages.
...

In a June letter to constituents, McCain said amending the Constitution "cannot be done as a knee-jerk reaction to a tough problem."

"While Senator McCain believes marriage should be limited to a man and a woman, he opposes tampering with the Constitution and wants this issue to be resolved by the states," spokesman Marshall Wittman said from Washington.

Apparently McCain believes this represents a far too sweeping change to the balance of power between the states and the federal government. That sounds like a conservative argument.

Republican Sen. John McCain of Arizona broke forcefully with President Bush and the Senate GOP leadership Tuesday evening over the issue of same-sex marriage, taking to the Senate floor to call a constitutional amendment that would effectively ban the practice unnecessary -- and un-Republican.

"The constitutional amendment we're debating today strikes me as antithetical in every way to the core philosophy of Republicans," McCain said. "It usurps from the states a fundamental authority they have always possessed and imposes a federal remedy for a problem that most states do not believe confronts them."

...McCain argued on the Senate floor that there are "far less draconian" remedies, including the 1996 Defense of Marriage Act -- which defined marriage for purposes of federal law as a union between a man and a woman and allowed states to refuse to recognize same-sex marriages legally performed in other states -- and state constitutional amendments limiting marriage to heterosexual couples.

He said if the U.S. Supreme Court strikes down the Defense of Marriage Act or "state remedies to judicial activism fail," then amending the federal Constitution might be "appropriate."

But he said the decision in Massachusetts to legalize same-sex marriages does "not represent a death knell to marriage."

"What evidence do we have that states are incapable of further exercising an authority they have exercised successfully for over 200 years?" McCain said.

"We will have to wait a little longer to see if Armageddon has arrived."

That's a cute sound bite; Texas senators John Cornyn and Kay Bailey Hutchinson see the issue differently. Cornyn wrote a detailed piece in National Review about the amendment. Yes, he is a lawyer:

Nearly 120 years ago, in the case of Murphy v. Ramsey, the U.S. Supreme Court unanimously concluded that "no legislation can be supposed more wholesome and necessary in the founding of a free, self-governing commonwealth" than "the idea of the family, as consisting in and springing from the union for life of one man and one woman in the holy estate of matrimony" (emphasis added). That union is "the sure foundation of all that is stable and noble in our civilization; the best guaranty of that reverent morality which is the source of all beneficent progress in social and political improvement." Moreover, that same Court unanimously praised efforts to shield the traditional institution of marriage from the winds of political change, by upholding a law "which endeavors to withdraw all political influence from those who are practically hostile to its attainment."

Why do we need a federal constitutional amendment, when we already have DOMA?

The need for a federal constitutional amendment is simple: The traditional institution of marriage is under constitutional attack. It is now a national problem that requires a national solution. Legal experts and constitutional scholars across the political spectrum recognize and predict that the only way to preserve the status quo — the only way to preserve the traditional institution of marriage — is a constitutional amendment.

Immediately after the U.S. Supreme Court announced its decision in Lawrence v. Texas in June 2003, legal experts and commentators predicted that, under Lawrence, courts would begin to strike down traditional marriage laws around the country.

In Lawrence, the Court explicitly and unequivocally listed "marriage" as one of the "constitutional" rights that, absent a constitutional amendment, must be granted to same-sex couples and opposite-sex couples alike. Specifically, the Court stated that "our laws and tradition afford constitutional protection to personal decisions relating to marriage, procreation, contraception, family relationships, child rearing, and education.... Persons in a homosexual relationship may seek autonomy for these purposes, just as heterosexual persons do" (emphasis added). The Lawrence majority thus adopted the view endorsed decades ago by one of its members — Justice Ruth Bader Ginsburg. While serving as general counsel of the American Civil Liberties Union, she wrote that traditional marriage laws, such as anti-bigamy laws, are unconstitutional and must be struck down by courts.
...

Those decisions were breathtaking, not just in their ultimate conclusion, but in their rhetoric as well. The court concluded that the "deep-seated religious, moral, and ethical convictions" that underlie traditional marriage are "no rational reason" for the institution's continued existence. It argued that traditional marriage is a "stain" on our laws that must be "eradicated." It contended that traditional marriage is "rooted in persistent prejudices" and "invidious discrimination," rather than in the best interest of children. Amazingly, it even suggested abolishing the institution of marriage outright, stating that "if the Legislature were to jettison the term 'marriage' altogether, it might well be rational and permissible." And for good measure, the court went out of its way to characterize DOMA itself as unconstitutionally discriminatory.

Without a federal constitutional amendment, activist courts, and judges will only continue striking down traditional marriage laws across the country — including DOMA itself. Lawsuits challenging traditional marriage laws are now pending in courtrooms across America — including four lawsuits in federal court.

In 2000, Nebraska voters ratified a state constitutional amendment protecting marriage in that state. Yet that state constitutional amendment has been challenged in federal district court as violating federal constitutional law. As Nebraska's attorney general, Jon Bruning, testified last March, the state expects the federal district judge to strike down its constitutional amendment. A federal lawsuit has also been filed in Florida to strike down DOMA as unconstitutional under Lawrence. Lawyers are similarly claiming that DOMA is unconstitutional in a pending federal bankruptcy case in Washington state. And in Utah, lawyers have filed suit arguing that traditional marriage laws, such as that state's anti-polygamy law, must be struck down under Lawrence. And that just covers lawsuits in federal court — in addition, dozens of suits have been filed in state courts around the country.
...

The only way to stop the lawsuits, and to ensure the protection of marriage, is a constitutional amendment.

So it seems the timing's the thing. Most Republicans wanted the amendment to be a pre-emptive strike against liberal judges, to be sure the DOMA never gets rescinded by the federal judiciary.

More and more I think Congress actually need to go farther than the marriage amendment. We need to amend the Constitution to explicitly lay out the boundaries of the power of judicial review.

This is the current language of the Constitution establishing the Judicial Branch:

Article III.

Section 1
The judicial Power of the United States, shall be vested in one supreme Court,
and in such inferior Courts as the Congress may from time to time ordain and
establish. The Judges, both of the supreme and inferior Courts, shall hold
their Offices during good Behavior, and shall, at stated Times, receive for
their Services a Compensation which shall not be diminished during their
Continuance in Office.

Section 2
The judicial Power shall extend to all Cases, in Law and Equity, arising under
this Constitution, the Laws of the United States, and Treaties made, or which
shall be made, under their Authority; to all Cases affecting Ambassadors, other public Ministers and Consuls; to all Cases of admiralty and maritime
Jurisdiction; to Controversies to which the United States shall be a Party; to
Controversies between two or more States; between a State and Citizens of
another State; between Citizens of different States; between Citizens of the
same State claiming Lands under Grants of different States, and between a
State, or the Citizens thereof, and foreign States, Citizens or Subjects.

In all Cases affecting Ambassadors, other public Ministers and Consuls, and
those in which a State shall be Party, the supreme Court shall have original
Jurisdiction. In all the other Cases before mentioned, the supreme Court shall
have appellate Jurisdiction, both as to Law and Fact, with such Exceptions, and under such Regulations as the Congress shall make.

The power to invalidate an act of Congress is not plainly stated. The Judiciary Act of 1789 provides for US Supreme Court review of state court decisions (emphases mine):

That a final judgment or decree in any suit, in the highest court of law or equity of a State in which a decision in the suit could be had, where is drawn in question the validity of a treaty or statute of, or an authority exercised under, the United States, and the decision is against their validity; or where is drawn in question the validity of a statute of, or an authority exercised under, any State, on the ground of their being repugnant to the constitution, treaties, or laws of the United States, and the decision is in favour of such their validity, or where is drawn in question the construction of any clause of the constitution, or of a treaty, or statute of, or commission held under, the United States, and the decision is against the title, right, privilege, or exemption, specially set up or claimed by either party, under such clause of the said Constitution, treaty, statute, or commission, may be re-examined, and reversed or affirmed in the Supreme Court of the United States upon a writ of error....

The power of judicial review of acts of Congress, however, was conferred not by the Constitution or by legislation, but by the Supreme Court decision Marbury v Madison in 1803. I'll get to the details of that later. The fact is that the courts have taken the power to interpret the Constitution and used it to create new laws. Yes the Constitution must prevail when Congress tries to pass laws that are "repugnant" to it. But is it right to invest sufficient authority in nine unelected men and women to decide the legal definition of marriage in the United States?

Maggie Gallagher gets into more history that rebuts the McCain argument of "I agree with the goal but not with the means":

DOES A NATIONAL DEFINITION OF MARRIAGE violate the principles of federalism? Writing in the Atlantic Monthly, Jonathan Rauch makes the case for leaving the issue to the states: "Remember, all precedent leaves marriage to the states."

This commonly repeated cliché is simply untrue. In a series of decisions in the 1970s and '80s, the Supreme Court made marriage a federal issue, striking down many state laws regulating marriage and divorce. For example, in Zablocki v. Redhail, the Court ruled that it was unconstitutional for Wisconsin to require a man to be up to date in his child support before permitting him to remarry. A state has no right to require a person to live up to his marital obligations before taking on new ones. In Turner v. Safley, the Supreme Court ruled that a man who cannot fulfill any of the obligations of marriage (because he is incarcerated) still has the right to marry, state law to the contrary notwithstanding.

Moreover, the question whether the basic legal definition of marriage is a national issue or a states' rights issue was tackled once before and settled, in the 19th century.

Why is monogamy both the legal and social norm in America? For one reason only: Between 1862 and 1887, Congress repeatedly passed laws designed to stamp out polygamy in U.S. territory. The lengths to which Congress went strike us now as extreme. But without decisive federal intervention, America today would have polygamy in some states and not in others.

In 1862, Congress passed the Morrill Act criminalizing bigamy. Under that law, no married person could "marry any other person, whether single or married, in a Territory of the United States," under penalty of a $500 fine or five years in prison. In 1874, responding to the difficulty of getting convictions in regions where people supported polygamy, Congress passed the Poland Act, transferring plural marriage cases from Mormon-controlled probate courts to the federal system. In 1882, Congress passed the Edmunds Act, which vacated the government in the Utah territory, created a five-man commission to oversee elections, and forbade any polygamist, past or present, to vote. By 1887, half the prison population in Utah territory were people charged with polygamy. That year, Congress passed the Edmunds-Tucker Act, which, partly to facilitate polygamy convictions, allowed wives to testify against husbands in court. By 1890, the Church of the Latter Day Saints threw in the towel, advising its members "to refrain from contracting any marriages forbidden by the law of the land."

Like it or not, the only reason monogamous marriage remains the law of the land in America is active federal intervention to protect the national definition of marriage. In the late 19th century, of course, Congress could count on the Supreme Court to uphold its authority. Today, to ensure a national definition of marriage requires a constitutional amendment. But there is nothing radical or unprecedented about the idea of a national definition of marriage.

There is, however, something wrong with leaving marriage to the states. It won't protect defense-of-marriage laws from being overturned by a Supreme Court already signaling its interest in affirming same-sex marriage as a civil right. And in states that adopt same-sex marriage as a civil right, it won't protect Christian and other traditional religious organizations from persecution in the public square if they teach the sanctity of marriage.

Leaving the definition of marriage to the states will amount to a repudiation of Congress's judgment in the 19th century that polygamous marriage is unacceptable in our national, common culture.

Leaving the matter to the states amounts to conceding that marriage is not a key social institution. It suggests that marriage is just one of many values issues about which states can disagree without affecting any truly national interest. Leaving it to the states lends public endorsement to the idea that the fragmentation of our marriage culture is no problem at all.

The reality is that there is going to be a national definition of marriage. The question for Congress is whether it will be the novel definition now being foisted upon us by the courts, or the one affirmed by the vast majority of the American people.

The Republicans backing the amendment effort are routinely ridiculed by the left for proclaiming that if we allow same-sex marriages, everything else suddenly becomes fair game. Oh! people will demand legally recognized 5-way polygamists and marital bonds between people and horses or turtles. Those silly foolish right-wingers with their unbelievable exaggerations! Ms. Gallagher and Sen. Cornyn are telling the truth. Marriage in America will soon be completely meaningless.

Enough said.