The
Federal Marriage Amendment (FMA)
(also referred to by proponents as the Marriage Protection
Amendment) was a proposed amendment to
the United States
Constitution which would have limited marriage in the United States
to unions of one man and one
woman. The FMA would also have
prevented judicial extension of marriage rights to
same-sex or other unmarried couples, as well
as preventing
polygamy.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
Representatives 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
Senate has only voted on
cloture 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.
Background and current law
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
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 five U.S. states: New
Hampshire, Massachusetts, Vermont, Iowa and Connecticut.
In 2003
and 2008 respectively, the Massachusetts
and California
Supreme courts ruled in Goodridge
v. Department of Public
Health and
In Re
Marriage Cases 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
Vermont,
California,
New Jersey,
Washington, Oregon, and
New Hampshire allow
same-sex couples to enter into
civil
unions or
domestic
partnerships 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 Congress has
occasionally regulated marriage. The 1862
Morrill Anti-Bigamy Act, 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
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 tax returns
even if they file joint
state income
tax returns.
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 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. Evans.
Some
circuit courts have upheld state
constitutional amendments banning same-sex marriage. Notable among
these cases was the
8th
Circuit Court of Appeals' 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 1972,
the U.S.
Supreme Court
dismissed, "for want of a substantial question," an
appeal by two men who unsuccessfully challenged Minnesota's
marriage statutes in state court. Because the case,
Baker v. Nelson, came to the Court through
mandatory appellate review (not
certiorari), the summary dismissal
established
Baker v. Nelson as a binding
precedent.
Legislative history
The Federal Marriage Amendment has been introduced in the
United States Congress four times: in
2003, 2004, 2005/2006 and 2008.
2002
The original Federal Marriage Amendment, written by the
Alliance for Marriage, was first
introduced in the
107th
United States Congress in the
House of
Representatives by
Democratic Representative
Ronnie Shows (D-MS) with 22
cosponsors.
2003
The original proposed Federal Marriage Amendment was written by
Alliance for Marriage with the
assistance of Judge
Robert Bork,
Professor
Robert P. George of Princeton University
, and Professor Gerard
V. Bradley of
Notre Dame Law
School
. It was first introduced in the
House of
Representatives by Rep.
Marilyn
Musgrave (R-Colo.
) 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 Allard (R-Colo.
) on November
25, 2003 and designated S.J.Res.26. It was immediately
referred to the
Senate Committee
on the Judiciary.
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
cloture 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
supermajority (three-fifths) needed to end
debate and force a vote on the Amendment itself.
Senators John Kerry of Massachusetts
and John Edwards of
North
Carolina
skipped the
filibuster vote despite claiming to take a break from campaigning 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 Committee
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
amendment.
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 Rights
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
cloture 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
supermajority
(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 Gregg and
Arlen Specter, 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 Judiciary. On July 17, 2006, rules were recommended by
the
House Rules
Committee 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 table 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 Broun (R-Ga.) and 91
co-sponsors introduced H.J.Res.89, a proposition for a such
amendment.
Senator Roger
Wicker (R-MS
) and eight
other senators introduced a proposition for the amendment with
S.J.Res.43 on June 25.
Political considerations
Bush administration's stance
In 2003, the White House declined to take a stand on the amendment,
although Press Secretary
Ari Fleischer
relayed that President
George W.
Bush believed that marriage was
between a man and a woman. In 2004, President Bush expressed
support for this amendment.
Vice President Dick Cheney 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
community and
religious leaders 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 Today that the
Bush Administration had paid columnists to promote its views. 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. 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 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 to ban same sex marriage but 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 states 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
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, 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 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."
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 cite
Pew
Research Center 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 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.
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.
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' rights to regulate marriage by
federalizing
the issue, which they say should be left to the states. Many have
used the federalism argument, including Senator
John Kerry, Senator
John
McCain, and
paleolibertarians like Representative
Ron Paul, 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
Amendment on
prohibition, which was
later repealed by the
21st
Amendment.
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. 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 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.
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 Vermont
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
federalism 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.
References
External links