Family Attorney

Senator Feinstein Announces Continued Opposition To Constitutional Amendment That Would Prohibit Same-Sex Marriage

Contact: Howard Gantman 202/224-9629

June 6, 2006

Washington, DC - U.S. Senator Dianne Feinstein (D-Calif.) today announced her continued opposition to a constitutional amendment that would prohibit same-sex marriage, the Marriage Protection Amendment. The following is the text of Senator Feinstein’s statement on the Senate Floor:

“Mr. President, I rise today to oppose the Marriage Protection Amendment to the Constitution.

With all the problems in the world today, the Senate is spending valuable time debating a bill which we know does not have the votes for cloture, which is divisive, and which, I believe, does not belong on the national agenda.

The fact of the matter is that all family law has historically been relegated to the States.

Marriage, divorce, adoption, custody - all aspects of family law and domestic relations - have been the province of the States.

That’s what the Supreme Court has said in case after case - from In Re Burrus in 1890 to Rose v Rose in 1982.

In that 1982 case, the court affirmed the holding of In Re Burrus that:

‘[t]he whole subject of the domestic relations of husband and wife, parent and child, belongs to the laws of the states, and not to the laws of the United States.’

Similarly, in Sosna v. Illinois (1975) the Supreme Court wrote:

‘Domestic relations [is] an area that has long been regarded as a virtually exclusive province of the States.’

And in 1982, then-Associate Justice Rehnquist, dissenting in Santosky v. Kramer, wrote:

‘The area of domestic relations…has been left to the States from time immemorial, and not without good reason.’

And just this past November, in a television interview, Justice Stephen Breyer stated very simply: ‘Family law is State law.’

So it’s clear that domestic relations have been the jurisdiction of States - and that’s where they should remain. I deeply believe that this body should not be involved in putting amendments in the Constitution dealing with any aspect of marriage, of divorce, of families, of adoption, of any of those areas. The States reign supreme.

So why is it when Republicans are all for reducing the federal government’s impact on people’s lives - until it comes to these stinging litmus test issues, whether gay marriage or end of life - they suddenly want the federal government to intervene?

For the life of me, I don’t understand why this keeps coming before this body. It is extraordinarily difficult to pass a constitutional amendment. We all know that. Both Houses have to pass it by 67 votes. Then, over a seven-year period, it goes out the States, where it has to be ratified by three-quarters of the States.

The last constitutional amendment that went out to be ratified by the States was the Equal Rights Amendment. A simple 25-word amendment that said:

‘Equality of rights under the law shall not be denied or abridged by the United States or by any state on account of sex.’

And guess what, they were not able to get the necessary 3/4 of the States over a seven-year period.

So, I don’t believe this constitutional amendment would be successful, even if passed out of this body.

I haven’t seen one passed in the 13 years I have been here. And it is extraordinarily difficult to get one ratified, as I said.

Family law, indeed, is the purview of the States. So, there’s no need for a constitutional amendment.

This proposed constitutional amendment strikes at the heart of States’ rights in the area of family law, and in doing so, actually undermines our Constitution.

Moreover, I believe that Americans believe that the States should deal with same-sex marriage as the States see fit. And so I do.

And, Americans are especially concerned about amending this Constitution if it means closing the door on civil unions.

Now, why do I say this? How do I know this? Fifty-three percent of Americans polled recently would oppose a constitutional amendment that also bans civil unions and domestic partnerships, such as we have established in California.

Many legal experts believe that this amendment would do just that. The language in the second sentence of the amendment is ambiguous, at best, stating that:

‘Neither this Constitution, nor the constitution of any State, shall be construed to require that marriage or the legal incidents thereof be conferred upon any union other than the union of a man and a woman.’

Now, some on the other side have argued that the amendment would still allow for legal unions passed by the States legislatures, just not those instituted by the courts.

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