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Russ and Ted take the GOP thugs to the woodshed

Two of the only Dem spines at the national level take the GOP goons to school on their hate amendment. You can read Russ Feingold’s at the Wisconsin senator’s site, and listen to it as well. Go read it all.

I love the section where he asks the supporters of the amendment to explain what its real intent is, given the confusion on the right about what the amendment’s language means.

Groups supporting the amendment like the Alliance for Marriage and Concerned Women for America seem to think the amendment will permit legislatures to enact civil union legislation. In a radio interview during the Senate’s consideration of the amendment in 2004, Bob Knight, the head of that Concerned Women for America, suggested that wasn’t such a good thing. He said:

The second sentence was so convoluted that many legal scholars disagreed about what it actually meant, and its backers assured everyone that it meant states could pass civil unions, which is not the way to protect marriage. Civil unions are gay marriage by another name.

As recently as November 2005, the website of the Alliance for Marriage had the following explanation of a chart in which it says that “quasi-marital schemes” such as civil unions would be permitted if adopted by a state legislature rather than imposed by court:

“The second sentence ensures that the democratic process at the state level will continue to determine the allocation of the benefits associated with marriage.”

Interestingly, this chart no longer appears on the website. I won’t speculate about why that is, but it does seem like an important question for supporters of this amendment to get their stories straight on. There are states in the country today that authorize civil unions. How would this constitutional amendment affect those laws? We know what the supporters of the amendment intended with respect to the law in Massachusetts, but what about in Vermont, and Connecticut, and California, and New Jersey? What are duly elected state legislatures, in the exercise of their responsibility to enact laws consistent with the values and preferences of their citizens, allowed to do, and what are they prohibited from doing? Don’t they deserve to know?

…I could go on and on here Mr. President, but let me mention Prof. Scott Fitzgibbon of Boston College Law School, who also testified in support of the amendment at the Subcommittee’s last hearing. Mr. Fitzgibbon simply declined to answer when I asked him at the hearing whether the amendment would allow a state employer to give benefits to unmarried domestic partners of its employees. And he also refused to answer a followup written question about whether Connecticut’s civil union law would be constitutional. But he did say the following at the hearing:

“I am just going to say that the degree of ambiguity … isn’t such a terrible thing. This isn’t part of the tax code. It is proposedly [sic] a part of the United States Constitution and constitutional provisions rightly leave some scope for later determination.”

So there you have it Mr. President. The supporters and drafters of this amendment can’t agree on how it would affect civil union laws like the one recently enacted by the democratically elected legislature of the State of Connecticut. And at least one of them says that ambiguity is not such a bad thing. It’s normal for constitutional provisions to leave “some scope for later determination” he says.

So who will decide this question, which everyone can anticipate will be raised if this amendment becomes part of the Constitution? Who is responsible in our legal system for making a “later determination,” as Prof. Fitzgibbon calls it, of the meaning of a constitutional amendment? You guessed it, Mr. President, the courts! Given how this whole exercise of trying to define marriage in the governing document of our country started – outrage over a state court’s interpretation of a state constitution and fear of supposedly “activist judges” taking it upon themselves to redefine marriage — that is ironic indeed.

And it goes without saying that Ted Kennedy just puts the issue right out there — the way we need it said aloud, without the pathetic bobbing and weaving of the sHillarys, Holy Joes and Joe Bidens.

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.

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Pam Spaulding

Pam Spaulding