Topic: Marriage and its Definition
Date: SEPTEMBER 14, 2005
BROWNBACK: I want to go with an issue that is likely to come in front of you, and I recognize you're not going to give a pre-opinion on it, but I wanted to just make a point in talking about it. And that's the issue of marriage and its definition by the courts, and the taking of the issue of marriage from legislative bodies to the court.
And this is one of the most driving issues in the political environment in the United States today.
BROWNBACK: If the court comes in and trumps this issue and says legislative bodies cannot decide this issue -- here it is as a matter of constitutional law -- it will create this enormous jolt in the system.
In a series of laws, marriage has been decided by legislative bodies in the states. The definition of marriage as the union of a man and a woman has been passed and 45 of our 50 states have either constitutional amendments or statutes on the book that preserve the traditional definition of marriage. It's been in all regions of the country.
I bring it up for you because a federal court has now ruled in Nebraska, one federal judge has said that the Nebraska constitutional amendment -- now all the states are rushing to pass constitutional amendments, but everybody is scared of what the U.S. Supreme Court's going to do -- Nebraska passed a state constitutional amendment by 70 percent vote of the Nebraskan people. And these are good-hearted, good people. They want to try to do what's right.
And one federal judge comes in and then he throws all these federal constitutional issues on it -- violated the First Amendment right to free association, violated equal protection guarantees and then -- I don't know where he got this one -- represented an unconstitutional bill of attainder, which is legislation drafted at a particular individual.
I just hope if you're confirmed on the court that you would look at what happens if the court comes in and stomps on this issue today that has stirred up so much discussion.
And these are issues properly left to legislative bodies and people to shape and to look at and to debate and to consider and move back and forth with in legislative arenas.
But if you come in and you say there is a constitutional right to a broader definition of marriage and you do that and the court says that's the way it's going to be, it takes something out of the system that should be in the discussion.
BROWNBACK: And it should be allowed to mature through there and come up at some point, rather than the fire storm that that will create. And we'll be here years later like in the series of Roe cases where, after 30 years now, there's not more acceptance of the Roe opinion, there's less in America.
Not like Brown v. the Board of Education: After it's resolved and solved over the years, and society looks, OK, that was the right way to go. And we would all say that today.
Roe has gone the other way. And this would create another one if that one is picked up and stomped on by the courts.