Federal Marriage Amendment

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The Federal Marriage Amendment (FMA) is a proposed amendment to the United States Constitution which would define marriage in the United States as a union of one man and one woman. The FMA also would prevent judicial extension of marriage-like rights to same-sex couples or other unmarried persons. The most recent vote on the proposed amendment took place in the Senate on June 7, 2006. The amendment failed to pass; of the 60 votes required to invoke the cloture motion, 49 senators voted for putting the amendment to vote and 48 voted against.

1 Current law
2 Proposed amendment
- 2.1 Effects
  - 2.1.1 2002 version
  - 2.1.2 2004 version
3 Political considerations of the FMA in the United States
- 3.1 Bush administration's stance
4 Republican Senators who opposed the FMA
5 Republican Representatives who opposed the FMA
- 5.1 Influence on 2004 presidential election
6 Criticism of the Federal Marriage Amendment
7 Arguments in favor of the Federal Marriage Amendment
8 References

[edit] Current law

[edit] The role of states

In the United States, civil marriage is governed by state 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. Constitution. 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. Neff, 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 complied with. (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. 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 legal where performed.

Same-sex marriage is currently legal in one state. In 2003, the Massachusetts Supreme Judicial Court ruled in Goodridge v. Department of Public Health that the Massachusetts constitution requires the state to permit same-sex marriage. The decision could be reversed by an amendment to the state constitution, but so far no amendment barring same-sex marriage has passed in Massachusetts. Several other states including Vermont, California, and Connecticut allow same-sex couples to enter into civil unions or domestic partnerships that provide some or most of the rights and responsibilities of marriage under state law, but forbid same-sex marriages. More than 20 states have passed state constitutional amendments banning same-sex marriage, and in some cases, civil unions.

[edit] Federal statutes regulating marriage

Although the states have the primary regulatory power with regard to marriage, the federal legislature has occasionally regulated marriage. The 1862 Morrill Act Of The Bears, which made bigamy a punishable federal offense, was followed by a series of federal laws designed to end the practice of polygamy. In reaction to the possibility that same-sex marriage would be legalized in Hawaii, Congress passed the Defense of Marriage Act ("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 taxes even if they file joint state income taxes.

[edit] 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. Virginia, the United States Supreme Court overturned state marriage laws that barred interracial marriages. More recently, a federal judge struck down an amendment to Nebraska’s constitution that prohibited the state from granting legal protections to any ‘same-sex’ relationship ‘similar to’ marriage, although the decision did not require the state to allow same-sex marriages or civil unions. ^[1] ^[2]

[edit] Proposed amendment

The amendment was written by the Alliance for Marriage, an organization founded by Matt Daniels, with the assistance of Judge Robert Bork, Professor Robert P. George of Princeton University, Professor Gerard V. Bradley of Notre Dame Law School ^[3] It was originally proposed by Rep. Marilyn Musgrave in 2002 and consisted of two clauses. It stated:

Marriage in the United States of America shall consist only of the union of a man and a woman.

Neither this constitution or the constitution of any state, nor state or federal law, shall be construed to require that marital status or the legal incidents thereof be conferred upon unmarried couples or groups.

Controversy surrounding the second sentence of the original amendment has led to an alternative version that only includes the first sentence. Ms. Musgrave introduced a new version in March 2004 modifying the second sentence. However, only the original amendment was debated in the Senate when it came up for a vote on July 14, 2004.

[edit] Effects

[edit] 2002 version

The first sentence of the 2002 version would have provided an official definition of legal marriage in the United States. The second sentence went further by restricting how the courts are allowed to interpret federal and state anti-discrimination laws and constitutional amendments with regard to equal protection of non-married couples, regardless of sexual orientation. State laws would include local city and county ordinances, codes and regulations.

The legal consensus is that 2002 version would have barred state courts from requiring local governments to allow same-sex partners marriage or domestic partnership, or civil union status ("the legal incidents thereof"). It also might have prohibited granting any of a long list of equal civil rights to any unmarried couple, including joint parenting, adoption, custody, and child visitation rights, joint insurance policies, veteran's benefits, and domestic violence relief such as restraining and protection orders.

It is unclear what effect the original version of the FMA would have had on the enforceability of state or local domestic partner or civil union laws. Some legal experts concluded that the second sentence of the original amendment would effectively prohibit states and local governments from passing laws granting civil unions, domestic partnerships, or other laws granting legal incidents of marriage by making such laws unenforceable in courts. ^[4] ^[5]

[edit] 2004 version

The 2004 amendment would prohibit courts from interpreting any state or federal constitution to require same-sex marriage.

The first sentence of the FMA would prevent any state from allowing same-sex marriage, even if the voters of that state amended the state's constitution to require recognition of same-sex marriages. Ratification of the amendment would cause the dissolution of existing same-sex marriages currently recognized in Massachusetts.

The 2004 version replaces the phrase "unmarried couples or groups" with "any union other than the union of a man and a woman." As a result, the FMA would not overturn state laws that grant "legal incidents" of marriage to unmarried male-female couples, such as those in common law marriages.

Because the second sentence no longer refers to "state or federal law," the Amendment would likely allow state or federal legislators or voters to enact legislation granting some of the "legal incidents" of marriage to same-sex couples. However, legal scholars^{[citation needed]} question whether civil unions would be permitted under this revised language.

[edit] Political considerations of the FMA in the United States

Although the FMA was widely seen as not having the two-thirds vote necessary to pass either House of the U.S. Congress, it was introduced into Congress.

The bill was subject to a filibuster. A cloture motion to force a direct vote on the FMA was defeated in the Senate on July 14, 2004 by a wider-than-expected margin of 50 nay votes to 48 yea votes. The two missing votes were those of John Kerry and John Edwards, who decided the vote was sure to fail even without them present to vote against it, and chose to remain on the Presidential campaign trail and avoid creating a campaign issue for Bush. The 48 votes in support of the cloture motion were 12 votes short of the 60-vote (three-fifths) supermajority needed to end debate and force a vote on the amendment itself. They were 19 votes short of the 67-vote (two-thirds) supermajority needed to pass the amendment in the Senate. A number of Republicans joined Democrats in voting against the FMA, citing concerns about its wording and the principle of extending federal power into an area of policy traditionally managed by states. In late January 2005, Wayne Allard reintroduced the amendment, complete with 21 co-sponsors, all Republican. Due to 5 Southern seats reverting to Republicans and the defeat of Democratic senator Tom Daschle, the amendment picked up around 4-5 extra votes in the Senate, still not enough to guarantee passage.

Despite the amendment's failure in the Senate, the House of Representatives took it up on September 30, 2004. It received 227 yea votes and 186 nay votes, well short of the 290 yea votes needed for adoption. ^[6] Both sides agree the amendment picked up several House votes after the 2004 elections, but still not close to 290.

[edit] Bush administration's stance

Early in January of 2005, Bush told the Washington Post that although he still supported the amendment, he would not lobby heavily for the passage because he believed that until a federal court overturned the Defense of Marriage Act, there would not be enough votes for passage.

On January 25, 2005, according to the New York Times, Bush told a privately invited group of African-American community and religious leaders that he remained committed to amending the Constitution to ban same-sex marriage. ^[7] Over the course of the next two days, it was revealed by the Washington Post and USA Today that the Bush Administration had paid columnists to promote its views on marriage. The Department of Health and Human Services paid Maggie Gallagher $21,500, and Mike McManus $49,000, to write syndicated news columns endorsing the FMA. ^[8] ^[9] 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 that works with other organizations to promote marriage as defined between a man and a woman.

Vice President Dick Cheney (whose daughter Mary Cheney is lesbian ^[10]) has declined to endorse or condemn the FMA, maintaining that constitutional amendments are an issue for the states.^[11]

The FMA has also been divisive in President Bush's Republican party, dividing them by region; Northeastern Republicans are opposed to the ban while Southern Republicans support it.

[edit] Republican Senators who opposed the FMA

Lincoln Chafee, Rhode Island
Judd Gregg, New Hampshire
Olympia Snowe, Maine
John Sununu, New Hampshire
Susan Collins, Maine
John McCain, Arizona
Arlen Specter, Pennslyvania

These Senators opposed the FMA in the vote that was held on June 7th, 2006.

[edit] Republican Representatives who opposed the FMA

These Representatives opposed the FMA in the vote on July 18th 2006.

[edit] Influence on 2004 presidential election

There is much debate about the degree to which the Federal Marriage Amendment influenced the 2004 U.S. Presidential Election.

By the time Americans went to the polls, both John Kerry and George W. Bush 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, he was not opposed to states enacting their own civil union legislation.^[12]

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. Although this fact was not widely publicized outside of the gay press, 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." (Note that while it is possible to support vague and undefined "legal arrangements," such as power-of-attorney rights or the right to leave money to a gay partner, for example, and to simultaneously oppose all forms of "civil unions," the amendment would void them all, according to some legal opinions, and as has happened in Ohio with its own state amendment regarding domestic violence laws.) The White House partly clarified Bush's position in a February 24, 2004 press conference ^[13] with White House Press Secretary Scott McClellan, 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, ^[14] 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. ^[15]

The FMA's Republican co-sponsors, Senator Wayne Allard (R-CO) and Representative Marilyn Musgrave (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."^[16] Though the new language would have allowed hypothetical civil unions to be enacted by state legislatures, some fear it would have prevented both federal and state constitutions the ability to uphold such laws. In other words, states could enact civil unions, which could have been in turn struck down by court cases relying on the interpretation of the revised FMA language, or so the reasoning goes. Such reasoning is considered far fetched by many, however, since of the myriad laws in effect today, virtually none are construed as "required" by any state or federal constitution, yet the courts do not seem to strike these laws down. For example, neither federal nor state constitutions can be construed as requiring parking meters, nevertheless courts uphold their use every day.

According to James Dobson, founder of Focus on the Family, the President (speaking through a White House spokesman) agreed with the re-worded amendment. At no point after March 23, 2004 did President Bush voice disagreement with the language of the FMA as it was considered and subsequently voted on by the Senate and House of Representatives.

Pundits alleged in the week before the 2004 election that Bush had changed his mind, that he was expressing support of individual states' rights to permit civil unions in a statement made on October 26, 2004. Before October 26, 2004, however, Bush had never personally voiced support for states' rights to "civil unions," and avoided all mention of an exception for "civil unions" when speaking about the FMA during his 2004 political campaign. The true meaning of the October 2004 statement remains to be seen, and since his re-election, Bush has avoided mention of support for states' rights to civil unions. By contrast, although Kerry supported a Massachusetts State Amendment to ban gay marriage, he did not support the Federal Marriage Amendment nor a ban on civil unions. Kerry has voiced personal support for civil unions, while George Bush opposed them as Governor of Texas and has never said that he personally supports them (only that he would no longer deny an individual state the right to permit them).

Opponents of the FMA claim polling of the public has shown a cautious response, with many polls indicating opposition, even in states such as Arizona and Colorado which are normally thought of as socially conservative. They claim exit polls from the 2004 elections showed 25% of voters supporting same-sex marriage and another 35% supporting civil unions. Since they also claim the FMA "bans" civil unions they use such purported polling data to claim the FMA is not widely accepted.

While many Democrats believe that the Federal Marriage Amendment was a tool utilized by Bush and Karl Rove to get votes, it is estimated that 12% of Bush voters support same-sex marriage and over 50% support civil unions. This suggests that the voting base for the Republican party has a far more divided position on this issue than is often perceived.

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 Ohio. 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.^[17]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 Election, there was some speculation that many evangelicals did not go to the polls and vote because of the October surprise 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. ^[18] But the question of what "moral values" means is open to much interpretation. Take, for example, the state of Minnesota, where voters ranked moral values as their highest priority. Even so, Kerry still won the state.

Many people insist that the popularity of moral issues in the election was a consequence of voter affirmation for Bush policies. Additionally they claim that so-called moral issues are the clumping of topics that by default appeal to the GOP's base of voters, especially considering Bush's positions on the War on Terrorism. According to a Pace University Poll, most voters who voted with moral issues as a principal concern were happy with the state of the economy and also were early deciders in the Presidential race for Bush: 75% of new voters were self-declared Republicans, 68% were Southerners, and 67% were evangelicals.

Others claim that moral issues did not cause Bush's victory, since most Americans are amenable to allowing some benefits for same-sex couples. But the way the Federal Marriage Amendment was introduced, specifically forcing an "all or nothing" approach to the issue, may have benefited the GOP.

[edit] Criticism 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

Federalism: Opponents of the FMA argue that it would violate the states' rights to regulate marriage by federalizing the issue, which they say should be left to the states. Many liberals have used the federalism argument, including Senator John Kerry, moderate Senator John McCain, and paleolibertarians like Lew Rockwell and Ron Paul, who, while opposing the FMA, oppose gay marriage. Constitutionally banning same-sex marriage would not only remove the states' choice, but it would reverse the choices already made in some states, i.e., Massachusetts, Vermont, Connecticut, California, New Jersey and even Maine.
Writing Discrimination into Constitution: 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 Amendment on prohibition, which was later repealed by the 21st Amendment. Some people consider some other amendments such as the 16th and the 22nd to be restrictions on civil rights as well.
Effects on Heterosexual unmarried 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. ^[19]
Domestic Abuse The effect of an Ohio state constitutional gay marriage ban has allowed lawyers to use its wording to downplay charges of felony domestic abuse against women in heterosexual relationships to misdemeanor battery, because the couple was not married. In theory, the Federal Marriage Amendment could also be used in such a way.^[5]
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 ban 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 any amendment banning same-sex marriage 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 Clause. 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.^[20]

[edit] Arguments in favor of the Federal Marriage Amendment