| Federal Marriage Amendment |
Article Index for Federal |
Website Links For Federal |
Information AboutFederal Marriage Amendment |
| CATEGORIES ABOUT FEDERAL MARRIAGE AMENDMENT | |
| same-sex marriage in the united states | |
| proposed amendments to the united states constitution | |
|
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 legislative or judicial extension of marriage-like rights to Same-sex Couple s or other unmarried persons. CURRENT LAW The role of states In the United States, civil marriage is mostly 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 US Constitution . 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 (such as marriages in states with low ages of consent), incestuous marriages (such as uncle-niece marriages, which were legal in some states but not others), 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 consitution, 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 Union s or Domestic Partnership s that provide all or most of the rights and responsibilities of marriage under state law, but forbid same-sex marriages. 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 , which made bigamy a punishable federal offense, was followed by 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 , the 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. 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. (Citizens for Equal Protection v. Bruning) [http://msnbc.msn.com/id/7834478/] PROPOSED AMENDMENT The amendment was written by the Alliance For Marriage , an organization founded by Matt Daniels , with the assistance of Judge Robert Bork and other constitutional conservatives. It was originally proposed by Rep. Marilyn Musgrave in 2002 and consisted of two clauses (as discussed below, Ms. Musgrave introduced a new version in March 2004 modifying the second sentence): # ''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.'' The first sentence would have provided an official definition of legal marriage in the United States. Proponents claimed that this was a reasonable measure, based on established custom, which defended the Family and the institution of marriage. To others, it was an unfair means of excluding Same-sex couples from receiving benefits from that institution. 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 Ordinance s, Code s and Regulation s. The legal consensus is that the FMA as originally proposed 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"). This might have prohibited any court from ordering that equal civil rights be granted among homosexual couples, such as these spousal exemptions and benefits:
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 supporters of the amendment claimed that it would not prevent state or local governments from passing same-sex civil union or domestic partnership laws, though many legal experts suggested otherwise. Many legal experts concluded that the second sentence of the original amendment in effect would prohibit civil unions, domestic partnerships, and other laws granting legal incidents of marriage by making such laws unenforceable in courts. The controversy surrounding the second sentence of the original amendment has led to an alternative version that only includes the first sentence. However, only the original amendment was debated in the Senate when it came up for a vote on July 14 , 2004 . Finally, a new amendment has been proposed by Rep. Musgrave that modifies the second sentence. H.J. Res. 106 (108th Congress 2004) and S.J. Res. 40 (108th Congress 2004) each provide: Marriage in the United States shall consist only of the union of a man and a woman. 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. The phrase "unmarried couples or groups" was replaced with "any union other than the union of a man and a woman" which presuambly would protect existing state laws that grant "legal incidents" of marriage to unmarried heterosexual couples, such as those in Common Law Marriage s. Because the second sentence no longer refers to "state or federal law," the Amendment presumably would allow state and/or federal legislators or voters to enact legislation recognising same-sex civil unions or other "legal incidents" of marriage. However, most legal scholars still question whether civil unions would be permitted under this revised language. RATIFICATION PROCESS The process by which the Constitution can be amended is set out in Article Five Of The United States Constitution . To become part of the Constitution, the FMA would need to be approved by a two-thirds majority in the United States House Of Representatives and the Senate , and then ratified by the State Legislature s or conventions in three-fourths of the states (38 states). The FMA has not been approved by a two-thirds majority in either house of Congress. It was introduced in the House on May 15 , 2002 , and again on May 21 , 2003 , by Representative Marilyn Musgrave ( R - Colorado ). The chief sponsor of the amendment in the Senate is Wayne Allard ( R - Colorado ). Three-fourths of states already have enacted laws based on the Defense Of Marriage Act , but these laws do not constitute ratification of the FMA. STATE MARRIAGE AMENDMENTS Texas became the 19th state to amend its state constitution to define marriage as the union of only one man with only one woman. (National Conference of State Legislatures) In 2004 the state of Ohio added to its state ballot a proposed amendment to the state constitution defining a legal marriage as the union of only one man with only one woman. It was passed and is now part of the Ohio state constitution. (Ohio Constitution) Nebraska is one of the states that added an amendment to its constitution to reinforce existing statutes defining marriage between one man and one woman. The amendment passed by a vote of 70 to 30 percent. However, on May 12, 2005 Joseph Bataillon, Chief Judge of the U.S. District Court of Nebraska, ruled the state constitutional amendment violates the U.S. Constitution, citing that "the intent and purpose of the amendment is based on animus against this class [gay, lesbian, and homosexual couples ." (Citizens for Equal Protection v. Bruning) On January 24, 2006, Pennsylvania State Representative Scott Boyd (R-Lancaster) proposed an Amendment To The Pennsylvania Constitution defining marriage between one man and one woman. The language of the proposed Constitutional Amendment would also prevent the legislature or judiciary from creating Civil Unions . 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. Both sides agree the amendment picked up several House votes after the 2004 elections, but still not close to 290. 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 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. [http://www.usatoday.com/news/washington/2005-01-27-hhs_x.htm 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 is lesbian) has declined to endorse or condemn the FMA, maintaining that constitutional amendments are an issue for the states. Campaign Issue 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 and also supported same-sex civil unions. {Link without Title} Previously, on , 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. As a result, the FMA's Republican co-sponsors, Senator , 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). Polling of the public has shown a cautious response to the amendment, with many polls indicating opposition, even in states such as Arizona and Colorado which are normally thought of as socially conservative. Exit polls from the 2004 elections showed 25% of voters supporting same-sex marriage and another 35% supporting civil unions, which brings into question how many in the public would want a federal amendment that bans both marriage and civil unions. While most Democrats assume 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 was on the ballot, 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. {Link without Title} Yet 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. Yet Roberta Combs, President of the Christian Coalition of America claims, "Christian evangelicals made the major difference once again this year." In the , 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. CRITICISM OF THE FEDERAL MARRIAGE AMENDMENT 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. {Link without Title} Gay rights Gay Rights advocates oppose the amendment, calling it discriminatory, and harmful to gay families. They state that same-sex marriage is necessary in order to give gay people the privileges which marriage grants such as health-care for spouses and children. They also maintain that creating a "civil union" status would be merely setting up a " Separate But Equal " situation. Supporters of gay rights have had success with both local ordinances and court decisions; the second sentence of the FMA would remove the latter option. Additionally, even the legislative path for domestic partnerships have partially relied on constutitional arguments to convince legislators and the public. Under a successfully-amended FMA, the Federal government (Congress, the Supreme Court, and President) would become the ultimate authority in determining the content and value of state-proposed "civil unions", and would gain new ability to test the privacy limits of gay relationships (and of heterosexual marriage as well, see below). Lambda Legal Defense , a gay rights legal group, said that the campaign for the FMA was "designed to further anti-gay bigotry". They add that, if passed, it would be only the second Constitional 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 , though some people consider some other amendments such as the 16th and the 22nd to be restrictions on civil rights as well.) Others such as San Francisco mayor Gavin Newsom , whose city had been marrying gay couples in violation of California statute, have echoed this argument. Some opponents of the FMA point out that allowing same-sex couples to marry does not prevent heterosexual couples from doing so, that other countries have allowed same-sex marriage, and that the United Nations recognizes marriage as a fundamental human right. They hold that the FMA exists to pander to the religious right and curry political favor; rather than providing any "protection" to heterosexual married couples or the institution of marriage, it instead would be writing discrimination into the Constitution. Heterosexual unmarried couples With reference to the above discussion of the text of the proposal, it is argued that the FMA would have severely affected the legal rights of heterosexual unmarried couples as well. Some heterosexual couples, for various reasons, choose not to marry, yet are in stable relationships. Such couples may nevertheless seek some degree of legal protection and/or provisions. Arguably, the FMA would have severely curtailed any such attempts. In his dissenting opinion in '' Lawrence V. Texas '', Justice Antonin Scalia quoted precedents stating that "a person has no constitutional right to engage in sexual intercourse, at least outside of marriage." Under such a strict constructionist intepretation, the FMA could be used to criminalize ''all'' sex outside of a marriage recognized by the state - even between consenting heterosexual adults. Because DOMA permits states to refuse to recognize marriages in other states, this could, in theory, permit states to criminalize sex between persons not married in that state. Many states, such as North Carolina and Georgia, have already declared premarital sex to be illegal, as well as consensual sodomy. Federalism Another argument used againt a federal marriage amendment is that it would violate the , it has also been used by moderate Senator John McCain and Paleolibertarians like Lew Rockwell and Ron Paul , who, while opposing the FMA, oppose gay marriage. The Right to Privacy The word "marriage" does not appear in the Constitution, and is therefore left to the States to define. Many important Supreme Court decisions, notably '' Griswold V. Connecticut '' in 1965 (which legalized access to birth control by married heterosexual couples), were argued and decided on the basis of the U.S. Constitution's omission of the word "marriage" and by a measure of Privacy derived from that omission. 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. Prominent social conservative legislators, most notably Senator Rick Santorum , have condemned the right of married heterosexual couples to have access to birth control. Santorum has compared ''Griswold v. Connecticut'' to '' Roe V. Wade '' (the abortion rights decision). Santorum has frequently expressed an opinion that the "right to privacy" does not, and should not, exist under the U.S. Constitution or within the confines of marriage. 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. A successfully-amended FMA would have given the Federal government the right to intervene in the Terri Schiavo case of 2005 , for example, overruling a husband's wish and legal right to allow his wife to die (she had been brain-damaged for 14 years, but despite Congressional intervention, Florida state law and state decisions prevailed; she died 14 days after the removal of her feeding tube). Separation of Church and State Some religious groups, especially those concerned with the Separation of governmental regulation from imposing specific viewpoints oppose the amendment. They 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 and combines powers that the United States kept intentionally separate when it was founded. They hold that not only is the FMA attempting to legislate "morality", but it attempts to legislate one specific point which many people and religious groups oppose. 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 both the secular rights granted by marriage and the opportunity for religions which condone same-sex marriage to perform legally binding same-sex marriages. Others concerned with the separation of church and state claim that marriage is an essentially religious term, and as such has no business being regulated by the federal or state governments. These people would prefer to have the various legal benefits associated with marriage be transferred to civil unions and to have those civil unions specifically condoned by the state. Religious organizations would then, in their ideal, be the sole sources of "marriage" certificates. ARGUMENTS IN FAVOR OF THE FEDERAL MARRIAGE AMENDMENT Judicial Activism Proponents of the FMA argue that if it were not for judicial overreach, there would be no need for a FMA. They argue that unelected judges should not be permitted to enact by fiat, that which could never pass by democratic means. They argue that the federalism proposed by the liberal opponents of a constitutional amendment is in fact a sham. They say that it is a contrivance for permitting liberal state judges, abetted by sympathetic justices on the Supreme Court of the United States, 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 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. Abolishment of Male and Female Distinctions Proponents argue that to sanction same-sex marriage would be akin to saying that there is no relevance to gender, and thus result in the abolition of gender. They point to the statements of many same-sex and transsexual groups who advocate the abolition of gender, stating that the concept of male and female is an outdated, stereotypic model that needs to be abolished. Some say that this will lead to the abolishment of such things as male and female restrooms. They say that only the FMA can ensure that this does not happen. Polygamy Many argue that if same-sex marriage were enacted, that the very same arguments that would establish a right to same-sex unions, would also establish a right to multiple partner unions. They say that if the essence of marriage and the right to marital status is sufficiently defined without reference to gender, then no principled objection could remain to removing its binary barrier as well. Since the principle arguments in favor of same-sex marriage continually define marriage as only in reference to emotional or financial interdependence, and in terms of autonomy, privacy, and intimacy. Then no reasonable that is not of an arbitrary nature, can exist for denying marriage to polygamous unions, whose members also can claim the arrangement is necessary for their self-fulfillment, privacy, autonomy, and intimacy. The legal nature of marriage cannot be totally malleable without the durability and viability of this fundamental social institution being seriously compromised, if not entirely destabilized. This exact point was raised by Justice Antonin Scalia in his dissent in Lawrence V. Texas . The Fundamental Nature of Marriage Proponents of the FMA argue that the very existence of the institution of marriage does indeed "privilege procreative heterosexual intercourse." They say that Marriage is a privileged state and that is precisely why same-sex couples, are waging the battle to have their relationships recognized. They argue that Procreative heterosexual intercourse is and has been historically through all times and cultures an important feature of that privileged status, and that distinct characteristic is a fundamental, originating reason why the State privileges marriage. This was a point held in Dean v. District of Columbia, 653 A.2d 307, 337 (DC 1995). They argue that No matter how loving or devoted, without possessing the required prerequsites of being members of the opposite sex, one cannot obtain entry into the marriage institution, and any attempt to force entry only results in blurring the lines of reality and playing with the meaning of words. It also forever devalues and changes the meaning of that unique institution that exists between a man and a woman. They say that despite any feelings that a homosexual man may have for another man, or that a lesbian woman may have for another woman, their union can never result in the continuation of the human race. Their feelings for each other, no matter how sincere, are irrelevant to the Existence and Survival of the human race. Government has the right and power to reward and sanction particular behavior that is a benefit to society. Rewarding One Man and One Woman, who together form the family unit, continue the human race, and provide stable homes for their offspring, is a goal that is time-honored and legitimate. They say that altough various individuals may choose to marry for all sorts of reason, some of which may even not be sincere. The fundamental fact remains that marriage is a natural institution that brings together men and women for the purpose of continuing the human race and keeping a mother and father together to work together in raising the children they produce as a result of their coming together as one flesh. The public interest in such an institution is without equal, because thousands of years of human experience demonstrate that married husbands and wives, and the children they conceive and raise, are Healthier (both physically and mentally), Happier, and more prosperous than people in any other living situation. They say that arguments in favor of redefining the institution of marriage to include members of the same-sex, can only be logically sustained if there is no real difference between men and women. In real difference, they mean the actual physical differences between a man and a woman. One would have to make the absurd contention that Men and women are physically identical and are able to serve as completely interchangeable parts in the structure of the marriage relationship. Necessarily the term "same-sex marriage" is oxymoronic. SEE ALSO
REFERENCES # "'' Marriage will be defined nationally — but how? ''". USAToday .com. EXTERNAL LINKS
|
|
|