The
Federal Marriage Amendment (
FMA) (also referred to by proponents as the
Marriage Protection Amendment) was a proposed
amendmentArticle Five of the United States Constitution describes the process whereby the Constitution may be altered. Such amendments may be proposed by the United States Congress or by a national convention assembled at the request of the legislatures of at least two-thirds of the several states...
to the
United States ConstitutionThe Constitution of the United States of America is the supreme law of the United States. It is the foundation and source of the legal authority underlying the existence of the United States of America and the federal government of the United States...
which would have limited
marriageMarriage is a social union or legal contract between individuals that creates kinship. It is an institution in which interpersonal relationships, usually intimate and sexual, are acknowledged by a variety of ways, depending on the culture or demographic...
in the
United StatesThe United States of America is a federal constitutional republic comprising fifty states and a federal district...
to unions of one
manA man is a male human. The term man is used for an adult human male, while the term boy is the usual term for a human male child or adolescent human male. However, man is sometimes used to refer to humanity as a whole...
and one
womanA woman is a female human. The term woman is usually reserved for an adult, with the term girl being the usual term for a female child or adolescent...
. The FMA would also have prevented judicial extension of marriage rights to same-sex or other unmarried couples, as well as preventing
polygamyThe term polygamy is used in related ways in social anthropology, sociobiology, sociology, as well as in popular speech. Polygamy can be defined as any "form of marriage in which a person [has] more than one spouse."In social anthropology, polygamy is the practice of marriage to more than one...
.
An amendment to the U.S. Constitution requires the support of two thirds of each house of Congress, and ratification by three fourths of the states (currently thirty-eight). The most recent Congressional vote to take place on the proposed Amendment occurred in the
United States House of RepresentativesThe United States House of Representatives, commonly referred to as the "House," is the lower house of the bicameral United States Congress, the upper house being the United States Senate. The composition and powers of the House and the Senate are established in Article One of the Constitution...
on July 18, 2006 when the Amendment failed 236 yea to 187 nay votes, falling short of the 290 yea votes required for passage in that body. The
SenateThe United States Senate is the upper house of the bicameral United States Congress, the lower house being the House of Representatives. The composition and powers of the Senate and the House are established in Article One of the U.S. Constitution . Each U.S state is represented by two senators,...
has only voted on
clotureIn parliamentary procedure, cloture , also called closure and sometimes a guillotine, is a motion or process aimed at bringing debate to a quick end....
motions with regard to the proposed Amendment, the last of which was on June 7, 2006 when the motion failed 49 yea to 48 nay votes, falling short of the 60 yea votes required to proceed to consideration of the Amendment.
The role of states
In the United States, civil marriage is governed by
state lawIn the United States, state law is the law of each separate U.S. state, as passed by the state legislature . It exists in parallel, and sometimes in conflict with, United States federal law...
. Each state is free to set the conditions for a valid marriage, subject to limits set by the state's own constitution and the
U.S. ConstitutionThe Constitution of the United States of America is the supreme law of the United States. It is the foundation and source of the legal authority underlying the existence of the United States of America and the federal government of the United States...
. In fact, "[T]he State . . . has absolute right to prescribe the conditions upon which the marriage relation between its own citizens shall be created, and the causes for which it may be dissolved,"
Pennoyer v. NeffPennoyer v. Neff, 95 U.S. 714 , was a decision by the Supreme Court of the United States in which the Court held that there is no personal jurisdiction over a defendant unless the defendant is served while physically within the state....
, 95 U.S. 714 (1877). Traditionally, a marriage was considered valid if the requirements of the marriage law of the state where the marriage took place were fulfilled. (First Restatement of Conflicts on Marriage and Legitimacy s.121 (1934)). However, a state can refuse to recognize a marriage if the marriage violates a strong public policy of the state, even if the marriage was legal in the state where it was performed. (Restatement (Second) Of Conflict of Laws § 283(2) (1971).) States historically exercised this "public policy exception" by refusing to recognize out-of-state polygamous marriages, underage marriages, incestuous marriages, and interracial marriages. Following these precedents, nearly all courts that have addressed the issue have held that states with laws against same-sex marriage can refuse to recognize same-sex marriages that were legally performed elsewhere.
Same-sex marriage is currently legal in six U.S. states: New Hampshire, Massachusetts, Vermont, Maine, Iowa and Connecticut. In 2003 and 2008 respectively, the
MassachusettsThe Massachusetts Supreme Judicial Court is the highest court in the Commonwealth of Massachusetts. The SJC has the distinction of being the oldest continuously functioning appellate court in the Western Hemisphere.-History:...
and
CaliforniaThe Supreme Court of California is the state supreme court of California. It is headquartered in San Francisco, and regularly holds sessions at its branch offices in Los Angeles and Sacramento. Its decisions are binding on all other California state courts....
Supreme courts ruled in
Goodridge v. Department of Public HealthGoodridge v. Dept. of Public Health, 798 N.E.2d 941 , was a landmark state appellate court case dealing with same-sex marriage in Massachusetts.-Ruling:...
and
In Re Marriage CasesIn re Marriage Cases 43 Cal.4th 757 [76 Cal.Rptr.3d 683, 183 P.3d 384], was a California Supreme Court case with the dual holding that "statutes that treat persons differently because of their sexual orientation should be subjected to strict scrutiny" and the existing "California legislative and...
that the states' constitutions required the state to permit same-sex marriage. The Massachusetts decision could be reversed by an amendment to the state constitution; to date, no such amendment has successfully been passed in Massachusetts. On June 2, the
California Marriage Protection Act qualified for the 2008 General Election ballot. Voted on by California Nov. 4, 2008, it amended the California Constitution to provide that "Only marriage between a man and a woman is valid or recognized in California." Several other states including
VermontSame-sex marriage in the U.S. state of Vermont began on September 1, 2009. Vermont was the first state to introduce civil unions in July 2000, and the first state to legislate same-sex marriage.-Civil unions:...
, California, New Jersey,
WashingtonState Registered Domestic Partnerships in Washington were created in 2007 in response to the State Supreme Court’s decision in Andersen v. King County. Domestic partnership legislation was expanded further in 2008 and on Monday 18th, May 2009 Governor Chris Gregoire signed the...
, Oregon, and
New HampshireSame-sex marriage will become legal in the U.S. state of New Hampshire on January 1, 2010. When same-sex marriages become legal, civil unions will no longer be performed and will become marriages by January 1, 2011, unless otherwise dissolved, annulled or previously converted to marriage.On January...
allow same-sex couples to enter into
civil unionA civil union is a legally recognized union similar to marriage. Beginning with Denmark in 1989, civil unions under one name or another have been established by law in many developed countries in order to provide same-sex couples with rights, benefits, and responsibilities similar to opposite-sex...
s or
domestic partnershipA domestic partnership is a legal or personal relationship between two individuals who live together and share a common domestic life but are neither joined by marriage nor a civil union...
s that provide some of the rights and responsibilities of marriage under state law. Thirty states have passed state constitutional amendments defining marriage as being between one man and one woman.
Federal statutes regulating marriage
Although individual U.S. states have the primary regulatory power with regard to marriage, the
United States CongressThe United States Congress is the bicameral legislature of the federal government of the United States of America, consisting of two houses, the Senate and the House of Representatives. Both senators and representatives are chosen through direct election....
has occasionally regulated marriage. The 1862
Morrill Anti-Bigamy ActThe Morrill Anti-Bigamy Act was a federal enactment of the United States Congress that was signed into law on July 8, 1862 by President Abraham Lincoln...
, which made bigamy a punishable federal offense, was followed by a series of federal laws designed to end the practice of polygamy. In 1996 as a reaction to a state level judicial ruling prohibiting same-sex couples from marrying that may violate Hawaii's constitutional equal protection clause (Baehr v. Miike, 80 Hawai`i 341), Congress passed the
Defense of Marriage ActDefense of Marriage Act, or DOMA, is the short title of a federal law of the United States passed on September 21, 1996 as Public Law No. 104-199, 110 Stat. 2419. Its provisions are codified at and...
(DOMA), which defines marriage as a legal union of one man and one woman for the purpose of interpreting federal law. Under DOMA, the Federal government does not recognize same-sex marriages or civil unions, even if those unions are recognized by state law. For example, members of a same-sex couple legally married in Massachusetts cannot file joint
Federal income tax returnsThe federal government of the United States imposes a progressive tax on the taxable income of individuals, partnerships, companies, corporations, trusts, decedents' estates, and certain bankruptcy estates. Some state and municipal governments also impose income taxes. The first Federal income tax...
even if they file joint
state income tax returnsState income tax is an income tax in the United States that is levied by each individual state. Seven states choose to impose no income tax. These states are Alaska, Florida, Nevada, South Dakota, Texas, Washington, and Wyoming. Additionally, New Hampshire and Tennessee limit their state income...
.
The United States Constitution and federal courts
Federal courts have interpreted the U.S. Constitution to place some limits on states' ability to restrict access to marriage. In
Loving v. VirginiaLoving v. Virginia, , was a landmark civil rights case in which the United States Supreme Court, by a 9-0 vote, declared Virginia's anti-miscegenation statute, the "Racial Integrity Act of 1924", unconstitutional, thereby overturning Pace v...
, the United States Supreme Court overturned state marriage laws that barred interracial marriages on the basis that marriage is a "basic civil right..." and that "...the freedom to marry, or not marry, a person of another race resides with the individual and cannot be infringed by the State." The Supreme Court struck down a 1992 Colorado constitutional amendment that barred legislative and judicial remedies to protect homosexuals from discrimination solely on the basis of their sexual orientation in
Romer v. EvansRomer v. Evans, 517 U.S. 620 , is a United States Supreme Court case dealing with civil rights and state laws. The Court gave its ruling on May 20, 1996 against an amendment to the Colorado state constitution that would have prevented any city, town or county in the state from taking any...
.
Some
circuit courtCircuit court is the name of court systems in several common law jurisdictions. Originally it meant a court that would hold sessions in multiple locations within its judicial district; the judge or judges would travel in a circuit in order to adjudicate cases across a wide area. Especially on the...
s have upheld state constitutional amendments banning same-sex marriage. Notable among these cases was the
8th Circuit Court of Appeals'The United States Court of Appeals for the Eighth Circuit is a federal court with appellate jurisdiction over the district courts in the following districts:* Eastern District of Arkansas* Western District of Arkansas...
affirmation of Nebraska's constitutional amendment which defines marriage as between a man and a woman, and states that unions of two people in a same-sex relationship as marriage or similar to marriage shall not be valid or recognized in Nebraska.
In the 1972 Supreme Court case
Baker v. NelsonBaker v. Nelson, 291 Minn. 310 , 409 U.S. 810 , was a case in which the Minnesota Supreme Court ruled that Minnesota law limited marriage to opposite-sex couples, and that this limitation did not violate the United States Constitution. The plaintiffs appealed, and the United States Supreme Court,...
, the Court dismissed it for "want of a substantial federal question". Unlike a denial of certiorari, a dismissal for "want of a substantial federal question" constitutes a decision on the merits of the case, and as such, is binding precedent on all lower Federal Courts. Baker has been cited as binding precedent in numerous lower court decisions since, and unless over-ruled, remains the law of the land in regard to this issue.
Legislative history
The Federal Marriage Amendment has been introduced in the
United States CongressThe United States Congress is the bicameral legislature of the federal government of the United States of America, consisting of two houses, the Senate and the House of Representatives. Both senators and representatives are chosen through direct election....
four times: in 2003, 2004, 2005/2006 and 2008.
2002
The original Federal Marriage Amendment, written by the
Alliance for MarriageThe Alliance for Marriage , founded in 1999, is a non-profit organization based in the United States. The organization describes itself as "dedicated to promoting marriage and addressing the epidemic of fatherless families in the United States." The group was founded by Matt Daniels and is...
, was first introduced in the
107th United States CongressThe One Hundred Seventh United States Congress was a meeting of the legislative branch of the United States federal government, composed of the United States Senate and the United States House of Representatives. It met in Washington, DC from January 3, 2001 to January 3, 2003, during the final...
in the
House of RepresentativesThe United States House of Representatives, commonly referred to as the "House," is the lower house of the bicameral United States Congress, the upper house being the United States Senate. The composition and powers of the House and the Senate are established in Article One of the Constitution...
by
DemocraticThe Democratic Party is one of the two major contemporary political parties in the United States, along with the Republican Party. It is the oldest political party in continuous operation in the United States and it is one of the oldest parties in the world. In the U.S...
Representative
Ronnie ShowsClifford Ronald "Ronnie" Shows was a Democratic member of the United States House of Representatives from Mississippi....
(D-MS) with 22 cosponsors.
2003
The original proposed Federal Marriage Amendment was written by
Alliance for MarriageThe Alliance for Marriage , founded in 1999, is a non-profit organization based in the United States. The organization describes itself as "dedicated to promoting marriage and addressing the epidemic of fatherless families in the United States." The group was founded by Matt Daniels and is...
with the assistance of Judge
Robert BorkRobert Heron Bork is an American legal scholar who has advocated the judicial philosophy of originalism. Bork formerly served as Solicitor General, acting Attorney General, and judge for the United States Court of Appeals for the District of Columbia Circuit...
, Professor
Robert P. GeorgeRobert P. George is McCormick Professor of Jurisprudence at Princeton University, where he lectures on constitutional interpretation, civil liberties and philosophy of law...
of
Princeton UniversityPrinceton University a private university located in Princeton, New Jersey, United States. The school is one of the eight universities of the Ivy League and is considered one of the Colonial Colleges....
, and Professor Gerard V. Bradley of
Notre Dame Law SchoolThe Notre Dame Law School, or NDLS, is the professional graduate law program of its parent institution, the University of Notre Dame. Established in 1869, NDLS is the oldest Roman Catholic law school in the United States. NDLS is ranked 23rd among the nation's "Top 100 Law Schools" by U.S. News &...
. It was first introduced in the
House of RepresentativesThe United States House of Representatives, commonly referred to as the "House," is the lower house of the bicameral United States Congress, the upper house being the United States Senate. The composition and powers of the House and the Senate are established in Article One of the Constitution...
by Rep.
Marilyn MusgraveMarilyn Neoma Musgrave , American politician, is a former Republican member of the United States House of Representatives who served from 2003 to 2009, representing the 4th District of Colorado....
(
RThe Republican Party is one of the two major contemporary political parties in the United States, along with the Democratic Party. Founded by anti-slavery expansion activists in 1854, it is often called the Grand Old Party or the GOP, despite being the younger of the two major parties. In the U.S...
-
Colo.Colorado is a U.S. state located in the Rocky Mountain region of the United States of America. It may also be considered to be part of the Western and Southwestern regions of the United States. Colorado entered statehood in 1876 and was nicknamed the “Centennial State”...
) on May 21, 2003 and consisted of two sentences.
The bill was designated H.J.Res.56 in the House and was immediately referred to the House Committee on the Judiciary. On June 25, 2003, it was referred to the Subcommittee on the Constitution, where hearings were held on May 13, 2004. The bill was introduced in the Senate by Senator
Wayne AllardAlan Wayne Allard is a member of the Republican Party, and was a United States Senator from Colorado. He did not seek re-election in 2008.-Early life:...
(
RThe Republican Party is one of the two major contemporary political parties in the United States, along with the Democratic Party. Founded by anti-slavery expansion activists in 1854, it is often called the Grand Old Party or the GOP, despite being the younger of the two major parties. In the U.S...
-
Colo.Colorado is a U.S. state located in the Rocky Mountain region of the United States of America. It may also be considered to be part of the Western and Southwestern regions of the United States. Colorado entered statehood in 1876 and was nicknamed the “Centennial State”...
) on November 25, 2003 and designated S.J.Res.26. It was immediately referred to the
Senate Committee on the JudiciaryThe United States Senate Committee on the Judiciary is a standing committee of the United States Senate, the upper house of the United States Congress...
.
2004
When the 2003 version of the FMA failed to advance in the Congress, Senator Allard re-introduced the Amendment on May 22, 2004 with a revised second sentence. Rep. Musgrave re-introduced the Amendment in the House on September 23, 2004 with the same revision.
The 2004 version of the Federal Marriage Amendment stated:
The bill was designated S.J.Res.30 in the Senate and was immediately referred to the Senate Committee on the Judiciary. When the bill became stuck in committee, Senator Allard re-introduced the Amendment in the Senate on July 7, 2004 where it was designated S.J.Res.40.The bill was subject to a filibuster: on July 9, 12, 13, and 14, the motion was made to proceed to consideration of the measure. On July 14, 2004, a
clotureIn parliamentary procedure, cloture , also called closure and sometimes a guillotine, is a motion or process aimed at bringing debate to a quick end....
motion to force a direct vote on the FMA was defeated in the Senate by a margin of 50 nay votes to 48 yea votes. The 48 votes in support of the cloture motion were 12 votes short of the 60-vote
supermajorityA supermajority or a qualified majority is a requirement for a proposal to gain a specified level or type of support which exceeds majority. In some jurisdictions, for example, parliamentary procedure requires that any action that may alter the rights of the minority has a supermajority requirement...
(three-fifths) needed to end debate and force a vote on the Amendment itself. Senators
John KerryJohn Forbes Kerry is the senior United States Senator from Massachusetts, and is chairman of the Senate Foreign Relations Committee....
of
MassachusettsThe Commonwealth of Massachusetts is a state in the New England region of the northeastern United States. It is bordered by Rhode Island and Connecticut to the south, New York to the west, and Vermont and New Hampshire to the north; at its east lies the Atlantic Ocean. Most of its population of...
and
John EdwardsJohnny Reid "John" Edwards is an American politician who served one term as U.S. Senator from North Carolina. He was the Democratic nominee for Vice President in 2004, and was a candidate for the Democratic presidential nomination in 2004 and 2008.He defeated incumbent Republican Lauch Faircloth...
of
North CarolinaNorth Carolina is a state located on the Atlantic Seaboard in the southeastern United States. The state borders South Carolina and Georgia to the south, Tennessee to the west and Virginia to the north. North Carolina contains 100 counties...
skipped the filibuster vote despite claiming to take a break from
campaigningThe Presidential Campaign of John Kerry, U.S. Senator from Massachusetts and the nominee of the Democratic Party challenged Republican incumbent President George W. Bush in the U.S. presidential election on November 2, 2004. Ultimately, Kerry conceded defeat in the race in a telephone call to Bush...
to participate. On July 15, 2004, the motion to proceed to consideration of the Amendment was withdrawn in the Senate.
The bill was designated H.J.Res.106 in the House and was immediately referred to the House Committee on the Judiciary. On September 28, 2004, rules were recommended by the
House Rules CommitteeThe Committee on Rules, or Rules Committee, is a committee of the United States House of Representatives. Rather than being responsible for a specific area of policy, as most other committees are, it is in charge of determining under what rule other bills will come to the floor...
with regards to debate and voting on the proposed Amendment. The rules were passed on September 30. The resolution was immediately considered. Passage of the proposed Amendment failed 227 yea votes to 186 nay votes, where 290 yea votes (two-thirds) are required for passage of a proposed
Constitutional amendmentArticle Five of the United States Constitution describes the process whereby the Constitution may be altered. Such amendments may be proposed by the United States Congress or by a national convention assembled at the request of the legislatures of at least two-thirds of the several states...
.
2005/2006
On January 24, 2005, Senator Allard introduced the Marriage Protection Amendment, which was the 2004 version of the Federal Marriage Amendment verbatim, with 21 Republican co-sponsors. In 2006, Rep. Musgrave introduced the Marriage Protection Amendment in the House. This version had the same language as the 2004 proposal, except that the word "solely" in the first sentence was replaced by the word "only".
The bill was designated S.J.Res.1 in the Senate and was immediately referred to the Senate Committee on the Judiciary. On November 9, 2005, the
Subcommittee on Constitution, Civil Rights and Property RightsThe Senate Judiciary Subcommittee on the Constitution is one of seven subcommittees within the Senate Judiciary Committee. The subcomittee was best known in the 1970s as the committee of Sam Ervin, whose investigations and lobbying — together with Frank Church and the Church Commission — lead to...
approved the bill for consideration by the full Judiciary Committee. On May 18, 2006, the Judiciary Committee reported to the Senate and the bill was placed on the legislative calendar. The motion to proceed to the measure was first made on June 5, 2006. A cloture motion on the motion to proceed was then presented in Senate. On June 6 and 7, the motion to proceed to the measure was again considered in the Senate. On June 7, a
clotureIn parliamentary procedure, cloture , also called closure and sometimes a guillotine, is a motion or process aimed at bringing debate to a quick end....
motion to force a direct vote on the Marriage Protection Amendment was defeated in the Senate by a margin of 49 nay votes to 48 yea votes, with the vote mostly following party lines with Democrats opposing and Republicans in favor. The 48 votes in support of the cloture motion were 12 votes short of the 60-vote
supermajorityA supermajority or a qualified majority is a requirement for a proposal to gain a specified level or type of support which exceeds majority. In some jurisdictions, for example, parliamentary procedure requires that any action that may alter the rights of the minority has a supermajority requirement...
(three-fifths) needed to end debate and force a vote on the Amendment itself. Eight Republican Senators opposed or did not vote; four Democratic Senators favored or did not vote. The only Senators who changed their position from the 2004 vote to the 2006 vote were Senators
Judd GreggJudd Alan Gregg is a former Governor of New Hampshire and current United States Senator serving as ranking member of the Senate Budget Committee. He is a member of the Republican Party and was a businessman and attorney in Nashua before entering politics...
and
Arlen SpecterArlen Specter is the senior United States Senator from Pennsylvania and a member of the Democratic Party. Specter was a member of the Democratic Party until 1965, when he enlisted as a Republican in order to challenge the Democratic district attorney of Philadelphia. Elected to the Senate in 1980,...
, both of whom voted Yea in 2004 and Nay in 2006.
The bill was designated H.J.Res.88 in the House and was immediately referred to the
House Committee on the JudiciaryU.S. House Committee on the Judiciary, or the House Judiciary Committee, is a standing committee of the United States House of Representatives. It is charged with overseeing the administration of justice within the federal courts, administrative agencies and Federal law enforcement entities...
. On July 17, 2006, rules were recommended by the
House Rules CommitteeThe Committee on Rules, or Rules Committee, is a committee of the United States House of Representatives. Rather than being responsible for a specific area of policy, as most other committees are, it is in charge of determining under what rule other bills will come to the floor...
with regards to debate and voting on the proposed Amendment. The rules were passed on July 18. The resolution was immediately considered. Passage of the proposed Amendment failed 236 yea votes to 187 nay votes, where 290 yea votes (two-thirds) are required for passage. The motion to reconsider was immediately
laid on the tableTable as a verb has two contradictory meanings, one in use in the United States and the other in the remainder of the English-speaking world...
and agreed to without objection. Twenty-seven Republican Representatives opposed the FMA; thirty-four Democrats voted in favor of the FMA and one Independent voted against the FMA in the vote on July 18, 2006 in the House.
2008
The Marriage Protection Amendment resurfaced in 2008. On May 22, Rep.
Paul BrounPaul Collins Broun, Jr. is a Republican United States Representative from Georgia's 10th congressional district. He is a member of the House Homeland Security Committee and the House Science & Technology Committee.-Personal life:...
(R-Ga.) and 91 co-sponsors introduced H.J.Res.89, a proposition for a such amendment. Senator
Roger WickerRoger Frederick Wicker is an American politician from the state of Mississippi. A Republican, he has been Mississippi's junior U.S. Senator since December 2007...
(
RThe Republican Party is one of the two major contemporary political parties in the United States, along with the Democratic Party. Founded by anti-slavery expansion activists in 1854, it is often called the Grand Old Party or the GOP, despite being the younger of the two major parties. In the U.S...
-MS) and eight other senators introduced a proposition for the amendment with S.J.Res.43 on June 25.
Bush administration's stance
In 2003, the White House declined to take a stand on the amendment, although Press Secretary
Ari FleischerLawrence Ari Fleischer is the former press secretary for U.S. President George W. Bush from January, 2001 to July, 2003. Fleischer was born in Pound Ridge, New York; his parents were Jewish, his mother a Hungarian immigrant who lost much of her family in the Holocaust....
relayed that President
George W. BushGeorge Walker Bush was the 43rd President of the United States from 2001 to 2009 and the 46th Governor of Texas from 1995 to 2000....
believed that marriage was between a man and a woman. In 2004, President Bush expressed support for this amendment.
Vice PresidentThe Vice President of the United States is the holder of a public office created by the United States Constitution. The Vice President, together with the President of the United States, is indirectly elected by the people through the Electoral College to a four-year term...
Dick CheneyRichard Bruce "Dick" Cheney served as the 46th Vice President of the United States from 2001 to 2009 in the administration of George W. Bush....
neither endorsed nor condemned the FMA, arguing that same-sex marriage is an issue for the states to decide.
On January 25, 2005, according to the
New York Times, Bush told a privately invited group of African-American
communityIn biological terms, a community is a group of interacting organisms sharing an environment.In human communities, intent, belief, resources, preferences, needs, risks, and a number of other conditions may be present and common, affecting the identity of the participants and their degree of...
and
religious leadersA religion is a system of human thought which usually includes a set of narratives, symbols, beliefs and practices that give meaning to the practitioner's experiences of life through reference to a higher power, deity or deities, or ultimate truth...
that he remained committed to amending the Constitution to "ban same-sex marriage". Over the course of the next two days, it was revealed by the
Washington Post and
USA TodayUSA Today is a national American daily newspaper published by the Gannett Company. It was founded by Al Neuharth...
that the Bush Administration had paid columnists to promote its views. The Department of Health and Human Services paid
Maggie GallagherMargaret A. Gallagher is an American writer and commentator. She has written a syndicated column for Universal Press Syndicate since 1995. She has also published five books...
$21,500, and
Mike McManusMichael McManus is the author of "Ethics & Religion", a socially conservative but economic liberal syndicated opinion column which appears in several small and mid-range US publications. The column, archives of which are linked below, is shaped much like a 'gathering point' of views; quotes from...
$49,000, to write syndicated news columns endorsing the FMA. Additionally, Gallagher also received $20,000 in 2002 and 2003 to write a report on government initiatives to strengthen marriage. McManus leads a group called "Marriage Savers" promoting marriage as defined between a man and a woman.
Influence on 2004 presidential election
By the time Americans went to the polls, both
John KerryJohn Forbes Kerry is the senior United States Senator from Massachusetts, and is chairman of the Senate Foreign Relations Committee....
and
George W. BushGeorge Walker Bush was the 43rd President of the United States from 2001 to 2009 and the 46th Governor of Texas from 1995 to 2000....
had somewhat similar positions on gay marriage, opposing the extension of marriage rights to same-sex couples and supporting states' rights on civil unions, although Kerry opposed the Federal Marriage Amendment and affirmatively supported civil unions, while Bush supported the Federal Marriage Amendment to ban same sex marriage, he was not opposed to states enacting their own civil union legislation.
Previously, on February 24, 2004, Bush called for an amendment which would have outlawed gay marriage, and which would have disallowed state constitutions from recognizing or enforcing gay civil unions. Bush's statement included a requirement that any amendment "leav[e] the state legislatures free to make their own choices in defining legal arrangements other than marriage." The White House partly clarified Bush's position in a February 24, 2004 press conference with White House Press Secretary
Scott McClellanScott McClellan is a former White House Press Secretary for President George W. Bush, and author of a controversial book about the Bush Administration titled What Happened. He replaced Ari Fleischer as press secretary in July 2003 and served until May 10, 2006. McClellan was the longest serving...
, who stated that by calling on the FMA to permit states the possibility of creating other "legal arrangements," Bush specifically meant to permit states the possibility of enacting civil unions. (McClellan also stated, however, that Bush did not personally support civil unions.) Similarly, at the February 25, 2004 press conference, McClellan stated that the White House intended to work with Congress to develop language for the FMA that permitted states to enact civil unions. Although Bush frequently spoke about FMA on the campaign from February and November 2004, he avoided mention of the phrase "civil unions" until an ABC News interview of October 26, 2004, aired one week before the election.
The FMA's Republican co-sponsors, Senator
Wayne AllardAlan Wayne Allard is a member of the Republican Party, and was a United States Senator from Colorado. He did not seek re-election in 2008.-Early life:...
(R-CO) and Representative
Marilyn MusgraveMarilyn Neoma Musgrave , American politician, is a former Republican member of the United States House of Representatives who served from 2003 to 2009, representing the 4th District of Colorado....
(R-CO), announced new language for the proposed amendment on March 23, 2004, replacing the second sentence of the amendment with "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." Both Allard and Musgrave called the change purely "technical."
Opponents of the FMA claim polling of the public has shown a cautious response, with many polls indicating opposition, even in states such as
ArizonaThe State of Arizona is a state located in the southwestern region of the United States. The capital and largest city is Phoenix. The second largest city is Tucson, followed in size by the four Phoenix metropolitan area cities of Mesa, Glendale, Chandler, and Scottsdale.Arizona was the 48th and...
and
ColoradoColorado is a U.S. state located in the Rocky Mountain region of the United States of America. It may also be considered to be part of the Western and Southwestern regions of the United States. Colorado entered statehood in 1876 and was nicknamed the “Centennial State”...
which are normally thought of as socially conservative. They cite
Pew Research CenterThe Pew Research Center is an American think tank organization based in Washington, D.C. that provides information on issues, attitudes and trends shaping the United States and the world. The Center and its projects receive funding from The Pew Charitable Trusts...
exit polls from the 2004 elections finding that 25% of polled voters support same-sex marriage and another 35% support civil unions.
On the other hand, of the 11 states in which same-sex marriage amendments were on the ballot, all passed handily. Bush won in nine, including
OhioOhio is a Midwestern state of the United States. The thirty-fourth largest state by area in the U.S., it is the seventh-most populous with nearly 11.5 million residents...
. Interpretation of some exit polling suggests that the amendments may have brought out one million additional voters, most of which came out for the first time to cast their ballots for Bush. Notably, a vast majority of these states have not voted for a Democrat in many years. The two states that Bush did not win, Michigan and Oregon, still passed amendments barring same-sex marriage.
However, Roberta Combs, President of the Christian Coalition of America claims, "Christian evangelicals made the major difference once again this year." In the
2000 Presidential ElectionThe United States presidential election of 2000 was a contest between Republican candidate George W. Bush, then-governor of Texas and son of former president George H. W. Bush , and Democratic candidate Al Gore, then-Vice President. Bill Clinton, the incumbent President, was vacating the position...
, there was some speculation that many evangelicals did not go to the polls and vote because of the
October surpriseIn American political jargon, an October surprise is a news event with the potential to influence the outcome of an election, particularly one for the U.S. presidency...
of George W. Bush's drunk-driving arrest record. In a dozen swing states that decided the presidential election, moral values tied with the economy and jobs as the top issue in the campaign, according to Associated Press exit polls.
Arguments against the Federal Marriage Amendment
This section contains arguments specific to the Federal Marriage Amendment. For arguments for and against same-sex marriage in general, see Same-sex marriage#Controversy
Federalism
Opponents of the FMA argue that it would violate the
states' rightsStates' rights in U.S. politics and constitutional law refers to the rights and political powers that U.S. states possess in relation to the federal government, as guaranteed by the Tenth Amendment of the Bill of Rights.-Background:...
to regulate marriage by
federalizingThe federal government of the United States is the central government entity established by the United States Constitution, which shares sovereignty over the United States with the governments of the individual U.S. states. The federal government has three branches: the legislative, executive, and...
the issue, which they say should be left to the states. Many have used the federalism argument, including Senator
John KerryJohn Forbes Kerry is the senior United States Senator from Massachusetts, and is chairman of the Senate Foreign Relations Committee....
, Senator
John McCainJohn Sidney McCain III is the senior United States Senator from Arizona. He was the Republican nominee for president in the 2008 United States election....
, and
paleolibertariansPaleolibertarianism is a school of thought within American libertarianism formerly associated with Lew Rockwell, the late economist Murray Rothbard, and the Ludwig von Mises Institute. It is based on a combination of radical libertarianism in politics and cultural conservatism in social thought...
like Representative
Ron PaulRonald Ernest Paul, M.D. is an American physician and Republican Congressman for the state of Texas. Paul is a member of the Liberty Caucus of Republican congressmen which aims to limit the size and scope of the federal government, and serves on the House Foreign Affairs Committee, the Joint...
, who opposes the FMA for several reasons, one of which is that he thinks regulating marriage is not a proper role of government. Constitutionally defining marriage would not only remove the states' choice, but it would reverse the choices already made in some states, i.e., Massachusetts, Vermont, Connecticut, and Maine.
Civil rights
Opponents of the FMA say that it would be only the second Constitutional amendment to restrict, rather than expand, the civil rights of individuals in the United States. The first was the
18th AmendmentAmendment XVIII of the United States Constitution, along with the Volstead Act , established Prohibition in the United States. Its ratification was certified on January 16, 1919...
on
prohibitionProhibition of alcohol, often referred to simply as prohibition, is a sumptuary law which prohibits alcohol. Typically, the manufacture, transportation, import, export, and sale of alcoholic beverages is restricted or illegal. The term can also apply to the periods in the histories of the countries...
, which was later repealed by the
21st AmendmentThe Twenty-first Amendment to the United States Constitution repealed the Eighteenth Amendment to the United States Constitution, which mandated nationwide Prohibition.- Text :- Background :...
.
Unmarried heterosexual couples
It is argued that the 2002 version of the FMA would have severely affected the ability of heterosexual unmarried couples to seek some degree of legal protection and/or provisions.
Opponents of the FMA argue that it may complicate efforts to enforce laws against domestic abuse in heterosexual relationships involving unmarried couples.
They note that two Ohio courts ruled that Ohio's similar amendment made the state's domestic violence laws unconstitutional as applied to unmarried couples, because they created a "quasi-marital relationship". (although the decisions were later reversed). Supporters of the FMA assert that this argument was an invalid scare tactic from the outset and that the FMA would not prevent laws against domestic abuse from being applied to unmarried couples. Ohio's Domestic Violence Statute was written in a unique manner. No other State has a Domestic Violence Statute written in the same manner. It would have been legally impossible for Courts in other States to reach the same result as the two Courts in Ohio did. Additionally, even in Ohio, 8 of the 10 Ohio Courts that addressed the effect of the State Amendment on Domestic Violence Laws found no conflict. Additionally several Attorneys General of other states issued legal opinions finding that no such conflict would exist. With the final ruling of the Supreme Court of Ohio, which held that the DV Statute was not in-conflict, no State faces any contention between marriage Statutes and Domestic Violence Laws.
The right to privacy
Many legal scholars suggest that FMA, by defining the institution of marriage on a federal level for the first time, would force Supreme Court re-interpretation of hundreds of laws affecting existing heterosexual marriages. Legal critics of the FMA frequently call it a "stealth amendment." They point out that the second sentence of the proposed FMA would not be necessary unless social conservatives had a broader and much more radical agenda: to end any implied right to privacy decided on the basis of the U.S. Constitution's omission of the word "marriage," to end state constitution jurisdiction over marriage and marriage-like arrangements, and to allow new federal laws denying access to birth control (for example) to currently married heterosexual couples.
Separation of church and state
Some religious groups argue that having the government decide whether a same-sex marriage should be legally binding on the grounds of the ideology of other religious groups restricts their religious freedom. They argue that marriage is a religious term that should not be defined by the government. Where same-sex marriage is recognized in the United States, no church or other religious institution is forced to perform same-sex marriages, but the FMA would deny the opportunity for religions which approve of same-sex marriage to perform legally binding same-sex marriages.
Unnecessary and ineffective
Opponents of the FMA claim that life for those in a heterosexual marriage are not materially affected by a constitutional marriage definition or legalization of same-sex marriage. They state that the FMA is totally unnecessary because federal and state laws, combined with the present state of the relevant constitutional doctrines, already make court-ordered nationwide same-sex marriage unlikely for the foreseeable future. It is claimed therefore, that such an amendment is a solution in search of a problem. It is claimed that neither federal nor state courts are likely to order same-sex marriage under the traditional interpretation of the Constitution’s
Full Faith and Credit ClauseArticle IV, Section 1 of the United States Constitution, commonly known as the Full Faith and Credit Clause, addresses the duties that states within the United States have to respect the "public acts, records, and judicial proceedings" of other states. According to the Supreme Court, there is a...
. Nor, for the foreseeable future, are courts likely to mandate same-sex marriage under substantive federal constitutional doctrines, such as the Fourteenth Amendment’s Due Process Clause or the Equal Protection Clause. They state that even if individual states recognize same-sex marriages, while other states refuse to recognize them, there is no reason to believe these discordant approaches will create insurmountable legal or public policy problems. There is no uniform national family law, just as there is no uniform national property law or criminal code. Throughout the nation’s history, states have adopted their own family law policies, including their own requirements for marriage. These divergent policies have not created intolerable levels of confusion or conflict among the states.
Arguments in favor of the Federal Marriage Amendment
This section contains arguments specific to the Federal Marriage Amendment. For arguments for and against same-sex marriage in general, see Same-sex marriage#Controversy
Restriction of perceived judicial overreach
Proponents of the FMA argue that if it were not for judicial overreach, there would be no need for a FMA; states' rights would not be violated since no state legislatures have recognized same-sex marriage (until
VermontThe State of Vermont is a state in the New England region of the northeastern United States of America. The state ranks 43rd by land area, , and 45th by total area. It has a population of 621,270, making it the second least-populated state...
did so in April 2009). They argue that the federalism proposed by the opponents of a constitutional amendment is a contrivance for permitting federal courts to foist same-sex marriage upon the whole nation, no matter what the people of the individual states desire. In essence they see the FMA largely as a defensive measure that would not be necessary if the judiciary were not acting beyond its perceived scope. Proponents support this claim with
Citizens for Equal Protection v. Bruning, in which a district court struck down Nebraska's marriage amendment, even though it had been passed by a margin of seventy percent (although the amendment was later reinstated.) Opponents of the FMA argue that this argument is an invalid scare tactic because no Federal court has ever ordered a state to permit same-sex marriage.
Uniform application of Full Faith and Credit
Under the Full Faith and Credit Clause, with certain exceptions, a state is obligated to honor the judgments and declarations of other states. While some assert that a "license" could be construed as a "judgment", the majority of legal scholars disagree. However, it is pointed out that a judgment for divorce is required to be honored because judgments are required to be enforced by out-of-state jurisdictions, regardless of whether those judgments are against the public policy of the out state forum (see
Williams v. North Carolina, 317 U.S. 287 (1942) (the case also stated that there is no "authority which lends support to the view that the full faith and credit clause compels the courts of one state to subordinate the local policy of that state, as respects its domiciliaries, to the statutes of any other state"). Because of the intricacies of family law and the mobility of married couples, the recognition of marriages in other states varies. For example, a couple who leaves California for Massachusetts to obtain a valid same-sex marriage may not be granted an equitable divorce in California should they file for divorce there. However, if they were granted a valid divorce in Massachusetts, the state of California would be required to uphold the judgment of the Massachusetts court. Using this scenario, not only would same-sex married couples be treated differently depending on the state, they could also be treated differently in the same state depending upon which state their divorce is obtained. The need for clarification on state uniformity in this issue requires a constitutional amendment at the federal level, particularly considering there will be a floodgate of marriages in out-of-state jurisdictions for purposes of obtaining a same-sex marriage license.
Protection of conjugal marriage
FMA proponents argue that traditional marriage in the United States has been given special legal protection. This protection has historically been granted only to the unique institution of conjugal marriage. Proponents of the FMA argue that same-sex marriage advocates want to disregard
federalismFederalism is political philosophy in which a group of members are bound together with a governing representative head. The term federalism is also used to describe a system of the government in which sovereignty is constitutionally divided between a central governing authority and constituent...
and enact same-sex marriage nationwide via judicial fiat, then the Federal Marriage Amendment is necessary to protect the institution of conjugal marriage by nationally preventing other forms of marriage.
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