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The Federal Marriage Amendment (FMA) (also known as the '''Marriage Protection Amendment''') 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 or other unmarried couples, as well as preventing people from having Multiple Spouses . The most recent 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. The Senate has only voted on Cloture motions with regards 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, " {Link without Title} 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 one U.S. 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 Commonwealth's constitution; to date, no such amendment has successfully been passed in Massachusetts. Several other states including Vermont , California , New Jersey , Washington , Connecticut , and New Hampshire allow same-sex couples to enter into Civil Union s or Domestic Partnership s that provide some of the rights and responsibilities of marriage under state law. Twenty-Seven 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 that prohibiting same-sex couples from marrying 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 explicitly denied homosexuals equal protection in Romer V. Evans . Some Circuit Court s 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. ''Citizens for Equal Protection v. Bruning,'' No. 05-2606 (8th Cir. Jul. 14, 2006) The most important Federal decision on same-sex marriage to date was the 1972 summary decision of the United States Supreme Court in Baker V. Nelson . When the issue of same-sex marriage came before the Court in 1972, it was dismissed for "want of a substantial federal question". Unlike a denial of certiorari, a dismissal for "want of a substantial federal question" constitutes a decision on the merits of the case, and as such, is binding precedent on all lower Federal Courts. Baker has been cited as binding precedent in numerous lower court decisions since, and unless over-ruled, remains the law of the land in regards to this issue. LEGISLATIVE HISTORY The Federal Marriage Amendment has been introduced in the United States Congress three times: in 2003, 2004 and 2005/2006. 2003 The original proposed Federal Marriage Amendment was written by . Accessed 18 August 2007. 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 legislature, Senator Allard re-introduced the Amendment on May 22, 2004 with a revised second sentence. Rep. Musgrave re-introduced the Amednment 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 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 two missing votes were those of John Kerry and John Edwards , who chose to remain on the Presidential Campaign Trail . 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. A number of Republicans joined Democrats in voting against the cloture motion, citing concerns about the Amendment's wording and the principle of extending federal power into an area of policy traditionally managed by states. 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 . United States House Of Representatives . Accessed 1 September 2007. 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 . The motion to reconsider was immediately Laid On The Table and agreed to without objection. 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. The Marriage Protection Amendment stated: 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 . Accessed 18 August 2007. 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 Sentors opposed or did not vote; four Democatic Senators favored or did not vote. The bill was designated H.J.Res.88 in the House and was immediately referred to the . Accessed 22 August 2007. LEGAL ANALYSES 2003 version The first sentence of the 2003 Amendment would have provided a Federal definition of legal marriage in the United States. The second sentence would have restricted how the courts were 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 be defined to include local, city and county Ordinance s, Code s and Regulation s. The legal consensus is that the 2003 version of the FMA would have barred state courts from requiring local governments to allow same-sex couples marriage, Civil Union or Domestic Partnership status. It also might have prohibited the granting of any of the Civil Rights And Responsibilities Of Marriages to any unmarried couple, including responsibilities regarding 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 2003 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 would effectively prohibit states and local governments from passing laws granting civil unions, domestic partnerships, or other similar laws by making such laws unenforceable. 2004 version The first sentence of the 2004 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 2004 amendment would have caused the dissolution of existing same-sex marriages recognized in Massachusetts. The 2004 Amendment replaced 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 Marriage s. The second sentence of the 2004 version no longer referred to "state or federal law" allowing flexibility such that it would likely have allowed state or federal legislators or voters to enact legislation granting some of the "legal incidents" of marriage to same-sex couples. Some legal scholars still questioned whether civil unions would be permitted under this revised language. The 2004 version of the FMA would prohibit courts from interpreting any state or federal constitution to require same-sex marriage. 2005/2006 version The 2005/2006 version of the Federal Marriage Amendment, titled the Marriage Protection Amendment, is word-for-word the same as the 2004 Federal Marriage Amendment, with the exception of its title. Subsequently, the same legal implications exist for the 2005/2006 version as the 2004 version of the FMA. POLITICAL CONSIDERATIONS Bush administration's stance Bush told the ''. Accessed 30 June 2006. On ''. Accessed 30 June 2006. 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. The FMA has been a somewhat division issue within the Republican Party , dividing them by region; Northeastern Republicans generally oppose the amendment while Southern and Midwestern Republicans support it. 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. Previously, on . Accessed 30 June 2006. 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." Federal Marriage Amendment to the U.S. Constitution: Recent events up to 2004 MAY ReligiousTolerance.org. Accessed 30 June 2006. 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 traditionally define 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 ''. Accessed 26 April 2007. Since FMA opponents claim the amendment bans civil unions they conclude that 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. 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 , 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. 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 liberals have used the federalism argument, including Senator John Kerry , moderate Senator John McCain , and Paleolibertarians like Lew Rockwell and Representative Ron Paul , who, while opposing the FMA, oppose gay marriage. 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, California, New Jersey 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 . Some people consider some other amendments such as the 16th and the 22nd to be restrictions on civil rights as well. 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.(28 May 2003) "Marriage Amendment: Oppose Writing Intolerance into the Constitution" , American Civil Liberties Union . Accessed 30 June 2006. Opponents of the FMA argue that it may complicate efforts to enforce laws against Domestic Abuse in Heterosexual relationships involving unmarried couples. "Passage of the Federal Marriage Amendment will harm victims of domestic violence" Legal Momentum. Accessed 13 August 2007. 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).Bischoff, Laura A. (15 October 2006) "Challenge to gay marriage ban makes some unlikely bedfellows: Top court must decide if unwed couples can be treated as spouses in domestic-violence cases." ''Middletown Journal''. Accessed 18 August 2007. 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.McDonnell, Robert F. (14 September 2006) "Virginia Attorney General Legal Opinion on effect of State Marriage Amendment" Commonwealth of Virginia, Office of the Attorney General. Accessed 18 August 2007. Ohio's Domestic Violence Statute was written in a unique manner.(Effective Date 9 November 2003) OHIO R.C. 2919.25 Domestic Violence Ohio Revised Code. Accessed 18 August 2007. No other State has a Domestic Violence Statute written in the same manner. It would have been legally impossible for Courts in other States to reach the same result as the two Courts in Ohio did. Additionally, even in Ohio, 8 of the 10 Ohio Courts that addressed the effect of the State Amendment on Domestic Violence Laws found no conflict. Homosexual Activists knew of the unique wording in the Ohio Domestic Violence Statute and of the Majority of Case Law in the State. They chose to ignore the overwhelming evidence against a conflict, and instead focused on the two Courts that did find such a conflict. Many in the legal community correctly predicted that the scare over the DV laws was nothing but a propaganda tactic, intended to frighten voters in Other States and that the Ohio Supreme Court would rule that there was no conflict with the DV statutes and the Marriage Amendment. As a result of this scare tactic several Attorney Generals of other States issued Legal Opinions finding that no such conflict would exist.Wasden, Lawrence G. (8 February 2006) Attorney General Opinion No. 06-1 Regarding Proposed Amendment to the Idaho Constitution State of Idaho, Office of the Attorney General. Accessed 18 August 2007. Now that the Ohio Supreme Court has ruled not a single State faces the same conflict. Thus the contention that any marriage amendment would conflict with DV Statutes has been proven to be a farce. Moyer, C.J. for Majority. (25 July 2007) State of Ohio v. Carswell - Decision Supreme Court of Ohio. Accessed 18 August 2007. 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.Carpenter, Dale. (1 June 2006) '' The Federal Marriage Amendment: Unnecessary, Anti-Federalist, and Anti-Democratic '' Cato Institute . Accessed 30 June 2006. 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. 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 . Accessed 18 August 2007. then the Federal Marriage Amendment is necessary to protect the unique institution of conjugal marriage. REFERENCES EXTERNAL LINKS
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