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

• "Marriage will be defined nationally — but how?" USAToday.com.
• Federal Marriage Amendment (The Musgrave Amendment) Hearing before the Judiciary Subcommittee on the Constitution. United States House of Representatives. 108th Congress, 2nd Session. May 13, 2004.
• An Examination of the Constitutional Amendment on Marriage Hearing before the Judiciary Subcommittee on the Constitution, Civil Rights and Property Rights. United States Senate. 109th Congress, 1st Session. October 20, 2005.
• Summary of Federal Marriage Amendment at National Conference of State Legislatures