Federal Marriage Amendment

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Federal Marriage Amendment (Musgrave Amendment), 2004

The Federal Marriage Amendment (FMA) (also referred to by proponents as the Marriage Protection Amendment) is a proposed amendment to the United States Constitution which would limite marriage in the United States to unions of one man and one woman. The FMA would also prevent judicial extension of marriage rights to same-sex or other unmarried heterosexual couples. 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. The last Congressional vote on the proposed Amendment occurred in the United States House of Representatives was held on July 18, 2006, when the Amendment failed 236 to 187, falling short of the 290 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 to 48, falling short of the 60 votes required to allow the Senate to proceed to consideration of the Amendment and the 67 votes required to send the amendment to the states.

Background and current law[edit source | edit]

The role of states[edit source | edit]

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. 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 defining marriage as a one man, one woman union can refuse to recognize same-sex marriages that were legally performed elsewhere.

Same-sex marriage is currently legal in the District of Columbia and in thirteen U.S. states: California, New Hampshire, New York, Massachusetts, Vermont, Iowa, Connecticut, Maine, Maryland, Washington, Rhode Island, Delaware, and Minnesota. 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.[1] Voted into law on 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"; this was found to be unconstitutional.[2] Several other states including Vermont, California, New Jersey, Washington, Illinois, Oregon, Nevada, Hawaii, Colorado, Delaware, Rhode Island, and Wisconsin 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[edit source | edit]

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 in U.S. territories, 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), section 3 of which defined marriage as a legal union of one man and one woman for the purpose of interpreting federal law. Under DOMA section 3, the federal government did not recognize same-sex marriages, even if those unions were recognized by state law. For example, members of a same-sex couple legally married in Massachusetts could not file joint federal income tax returns even if they filed joint state income tax returns. DOMA section 3 was struck down by the U.S. Supreme Court in U.S. v. Windsor on June 26, 2013.

The United States Constitution and federal courts[edit source | edit]

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.

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.[3]

One federal appellate court has upheld a state constitutional amendment banning same-sex marriage: the United States Court of Appeals for the Eighth Circuit in Citizens for Equal Protection v. Bruning. The Eighth Circuit, citing Baker v. Nelson, affirmed the constitutionality under the 14th Amendment's Equal Protection Clause 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, and reversing a ruling by Judge Joseph F. Bataillon of the United States District Court for the District of Nebraska that a prohibition on same-sex marriage was unconstitutional.[4]

In 2010, the United States District Court for the Northern District of California ruled[5] that Proposition 8, passed two years earlier by a majority of voters, was unconstitutional. As in Judge Baitaillon's decision about the Nebraska law, Judge Vaughn Walker stated in his ruling that moral opposition to gay marriage is not sufficient reason to make a law valid. Judge Walker ruled the law violated the 14th Amendment's Equal Protection clause, as well as the Due Process clause. The proponents of Proposition 8 appealed to the United States Court of Appeals for the Ninth Circuit, which affirmed the lower court's decision on February 7, 2012.[6] On June 26, 2013, the U.S. Supreme Court, upheld Ninth Circuit's ruling, and two days later, same sex marriage resumed in California.[7]

Legislative history[edit source | edit]

The Federal Marriage Amendment has been introduced in the United States Congress 10 different times: in 2002, 2003, 2004, 2005, 2006, 2008, and 2013.

2002[edit source | edit]

Ronnie Shows, sponsor of the first Federal Marriage Amendment

The original proposed Federal Marriage Amendment was written by the 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.[8] It was introduced in the 107th United States Congress in the House of Representatives on May 15, 2002, by Democratic Representative Ronnie Shows (D-MS) with 22 cosponsors,[9] and read:

Marriage in the United States 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 bill was designated H.J.Res 93 and was immediately referred to the House Committee on the Judiciary. On July 18, 2002, it was referred to the Subcommittee on the Constitution, which took no action on it.[10]

2003[edit source | edit]

The amendment was introduced again by Rep. Marilyn Musgrave (R-Colo.) on May 21, 2003, with the same wording proposed in 2002.[11][12] 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.[11] On November 23, Representative Barney Frank objected that the amendment would interrupt Massachusetts' scheduled experiment with same-sex marriage, then scheduled to begin in May 2004. Musgrave countered that the Massachusetts marriages were court-ordered. She said: "If we're going to redefine marriage, let's let the American people, through their elected representatives, decide—not activist judges. Let the people of Massachusetts decide."[13]

The bill was introduced in the Senate by Senator Wayne Allard (R-Colo.) on November 25, 2003 and designated S.J.Res.26. The amendment changed the language of the proposed amendment, substituting "marriage" for "marital status" and specifying that it applied to "any union other than the union of a man and a woman" rather than "unmarried couples or groups". The changes were intended to make it clear that state legislatures could still recognize civil unions if the amendment were to pass. "This new language makes the intent of the legislation even clearer: to protect marriage in this country as the union between a man and a woman, and to reinforce the authority of state legislatures to determine benefits issues related to civil unions or domestic partnerships," said Sen. Wayne Allard.[14] It was immediately referred to the Senate Committee on the Judiciary.[12]

2004[edit source | edit]

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:[15][16][17]

Marriage in the United States shall consist solely 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 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.[17] Senators John Kerry of Massachusetts and John Edwards of North Carolina skipped the filibuster vote.[18] On July 15, 2004, the motion to proceed to consideration of the Amendment was withdrawn in the Senate.[17]

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.[15][19] 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.[15]

2005/2006[edit source | edit]

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".[20][21]

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.[21][22] 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.[21] Eight Republican Senators opposed or did not vote; four Democratic Senators favored or did not vote.[22] 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.[23]

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.[20][24] 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.[20] 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.[25]

2008[edit source | edit]

On May 22, 2008, Rep. Paul Broun (R-Ga.) and 91 co-sponsors introduced H.J.Res.89, which proposed the enactment of FMA.[26] Senator Roger Wicker (R-Miss.) and eight other senators introduced similar legislation with S.J.Res.43 on June 25.[27]

2013[edit source | edit]

U.S. Representative Tim Huelskamp reintroduced the FMA (H.J.Res. 51) on June 28, 2013, in response to the U.S. Supreme Court decision on the Defense of Marriage Act in United States v. Windsor.[28]

Political considerations[edit source | edit]

Bush administration's stance[edit source | edit]

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.[29] In his State of the Union address on January 20, 2004, President Bush alluded to the recent court decision in Massachusetts ordering the state to recognize same-sex marriages beginning in May: "Activist judges ... have begun redefining marriage by court order, without regard for the will of the people and their elected representatives.... If judges insist on forcing their arbitrary will upon the people, the only alternative left to the people would be the constitutional process."[30] On February 24, after the same Massachusetts court reiterated that it was insisting on marriage and that civil unions were insufficient, Bush expressed support for this amendment for the first time.[31] In August, Vice President Dick Cheney neither endorsed nor condemned the FMA, arguing that same-sex marriage is an issue for the states to decide.[32] In 2009, Cheney stated his support for same-sex marriage on a state-by-state basis.[33]

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".[34] 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.[35][36] 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.[37]

Influence on 2004 presidential election[edit source | edit]

By the time Americans went to the polls, John Kerry opposed the Federal Marriage Amendment and affirmatively supported civil unions, while George W. Bush supported the Federal Marriage Amendment but was not opposed to states enacting their own civil union legislation.[38]

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."[39] The White House partly clarified Bush's position in a February 24, 2004 press conference[40] 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,[41] 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.[42]

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."[43]

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.[44]

On the other hand, of the 11 states in which amendments defining marriage 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 limiting official recognition of marriage to one man one woman unions.

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[edit source | edit]

This section contains arguments specific to the Federal Marriage Amendment. For arguments for and against same-sex marriage in general, see Same-sex marriage#Controversies

The first sentence of H.J. Res. 56 would provide an official definition of legal marriage in the United States. Proponents[who?] claim that this is a reasonable measure, based on established custom, which defends the family and the institution of marriage.[citation needed] To others, it is an unfair means of excluding same-sex couples from receiving benefits from that institution. Civil right activists and supporters of the LGBT (Lesbian, Gay, Bisexual, Transgender) community feel that the Federal Marriage Amendment has no place in the United States constitution.[citation needed]

Federalism[edit source | edit]

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 Representative Ron Paul, who opposes the FMA for several reasons, one of which that regulating marriage is not a proper role of the federal government. Constitutionally defining marriage would not only remove the states' choice, but it would reverse the choices already made in some states and territories, i.e., Massachusetts, Vermont, Connecticut, New Hampshire, New York, Iowa, and the District of Columbia.

Civil rights[edit source | edit]

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.

At various times in U.S. history, other minorities have been prevented from marrying: African-Americans, for example. Interracial marriage also was illegal in various states, until the Supreme Court ruled such bans unconstitutional in 1967. Marriage is an institution long recognized by the U.S. government under the right to pursue happiness, and denying that right to any couple, regardless of gender, is argued as unconstitutional by many ACLU supporters.[citation needed]

Unmarried heterosexual couples[edit source | edit]

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.[45]

Opponents of the FMA argue that it may complicate efforts to enforce laws against domestic abuse in heterosexual relationships involving unmarried couples.[46] 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).[47] 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.[48] 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.[49] 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.[50]

Separation of church and state[edit source | edit]

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[edit source | edit]

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.[51]

Institution of Marriage Amendment[edit source | edit]

The Concerned Women for America (CWA) where concerned about the wording of the 2004 Federal Marriage Amendment. CWA did not support the language in the amendment because the second sentence is open to differing interpretations, and its drafters acknowledged that it was specifically worded so state legislators could create civil unions and domestic partnerships, because the CWA opposes any legal recognition of same-sex couples. CWA preferred the Institution of Marriage Amendment crafted by Home School Legal Defense Association President Michael Farris. That amendment, which has not been introduced by any member of Congress, states:[52]

Marriage in the United States shall consist only of the union of a man and a woman. Neither the United States nor any State shall recognize or grant to any unmarried person the legal rights or status of a spouse.

Arguments in favor of the Federal Marriage Amendment[edit source | edit]

This section contains arguments specific to the Federal Marriage Amendment. For arguments for and against same-sex marriage in general, see Same-sex marriage#Controversies

Restriction of perceived judicial overreach[edit source | edit]

Proponents of the FMA initially argued that if it were not for judicial overreach, there would be no need for an FMA; states' rights would not be violated since no state legislatures had recognized same-sex marriage. However, by the end of 2012, a number of states had enacted same-sex marriage both through the actions of their state legislatures (Vermont, New Hampshire, New York), and through popular vote (Maine, Maryland, Washington).

Prior to these legislative enactments and popular vote outcomes, proponents of the FMA argues that the federalism proposed by the opponents of a constitutional amendment was 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 saw the FMA largely as a defensive measure that would not be necessary if the judiciary were not acting beyond its perceived scope. Proponents supported 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 argued that this argument was an invalid scare tactic because no federal court has ever ordered a state to permit same-sex marriage. However, on February 7, 2012 a federal appeals court in a 2-to-1 decision threw out California's voter-approved restriction on same-sex marriage (Proposition 8) saying that it violated the Equal Protection clause of the U.S. Constitution. The federal appeals court rejected Proposition 8 even though 52 percent of voters(over seven million people) approved the restriction on same-sex marriage and it was upheld by the California Supreme Court.[53]

Uniform application of Full Faith and Credit[edit source | edit]

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 flood of marriages in out-of-state jurisdictions for purposes of obtaining a same-sex marriage license.[citation needed]

Protection of conjugal marriage[edit source | edit]

FMA proponents argue that opposite-sex marriage in the United States has been given special legal protection. This protection has historically been granted only to the unique institution of marriage as the cradle for the family and to legitimize lines of inheritance. Proponents of FMA argue that same-sex marriage advocates want to disregard federalism and use the judicial system to make same-sex marriage legal nationwide, which only the Federal Marriage Amendment can forestall.[citation needed]

Legislative activity[edit source | edit]

CongressShort titleBill number(s)SummaryDate introducedSponsor(s)# of cosponsorsLatest status
107th CongressFederal Marriage amendmentH.J.Res. 93Constitutional Amendment - Declares that marriage in the United States shall consist only of the union of a man and a woman.

States that 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.

May 15, 2002Ronnie Shows
(D-MS)
22Died in the Committee on the Judiciary
108th CongressFederal Marriage AmendmentH.J.Res. 56Constitutional Amendment - Declares that marriage in the United States shall consist only of the union of a man and a woman. Prohibits the Constitution or any State constitution, or State or Federal law from being construed to require that marital status or its legal incidents be conferred upon unmarried couples or groups.May 21, 2003Marilyn Musgrave
(R-CO)
131Died in the Committee on the Judiciary
S.J.Res.
43
Constitutional Amendment - Declares that marriage in the United States shall consist only of the union of a man and a woman. Prohibits the Constitution or any State constitution, or State or Federal law, from being construed to require that marital status or its legal incidents be conferred upon unmarried couples or groups.Nov 25, 2003Wayne Allard
(R-CO)
10Died in the Committee on the Judiciary
S.J.Res.
40
Constitutional Amendment - Federal Marriage Amendment - Declares that marriage in the United States shall consist only of the union of a man and a woman. Prohibits the Constitution or any State constitution from being construed to require that marital status or its legal incidents be conferred upon any union other than that of a man and a woman.July 7, 2004Wayne Allard
(R-CO)
19Failed cloture motion (48-50)
Proposing an amendment to the Constitution of the United States relating to marriage.H.J.Res. 106Constitutional Amendment - Marriage Protection Amendment - Declares that marriage in the United States shall consist only of the union of a man and a woman. Prohibits the Constitution or any State constitution from being construed to require that marital status or its legal incidents be conferred upon any union other than that of a man and a woman.September 23, 2004Marilyn Musgrave
(R-CO)
121Failed in House (227-186)
109th CongressMarriage Protection AmendmentS.J.Res.
1
Constitutional Amendment - Marriage Protection Amendment - Declares that:

(1) marriage in the United States shall consist only of the union of a man and a woman; and
(2) neither the U.S. Constitution nor the constitution of any state shall be construed to require that marriage or the legal incidents of marriage be conferred upon any other union.

January 24, 2005Wayne Allard
(R-CO)
32Failed cloture motion (49-48)
H.J.Res. 88Constitutional Amendment - Marriage Protection Amendment - Declares that: (1) marriage in the United States shall consist only of the union of a man and a woman; and (2) neither the U.S. Constitution nor the constitution of any state shall be construed to require that marriage or the legal incidents of marriage be conferred upon any other union.June 6, 2006Marilyn Musgrave
(R-CO)
134Failed in House (236-187)
110th CongressH.J.Res. 89Constitutional Amendment - Marriage Protection Amendment - Defines marriage in the United States as consisting only of the union of a man and a woman. Prohibits either the U.S. Constitution or the constitution of any state from being construed to require that marriage or the legal incidents of marriage be conferred upon any other union.May 22, 2008Paul Broun
(R-GA)
91Died in the Subcommittee on the Constitution and Civil Justice
S.J.Res.
43
Constitutional Amendment - Marriage Protection Amendment - Declares that: (1) marriage in the United States shall consist only of the union of a man and a woman; and (2) neither the U.S. Constitution nor the constitution of any state shall be construed to require that marriage or the legal incidents of marriage be conferred upon any other union.June 25, 2008Roger Wicker
(R-MS)
17Died in the Committee on the Judiciary
113th CongressProposing an amendment to the Constitution of the United States relating to marriage.H.J.Res. 51Constitutional Amendment - Marriage Protection Amendment - Defines marriage in the United States as consisting only of the union of a man and a woman. Prohibits either the U.S. Constitution or the constitution of any state from being construed to require that marriage or the legal incidents of marriage be conferred upon any other union.June 28, 2013Tim Huelskamp
(R-KS)
51Referred to the Subcommittee on the Constitution and Civil Justice

Public opinion[edit source | edit]

Nationwide polling[edit source | edit]

A 2003 Wirthlin poll found that 57% of Americans supported a constitutional amendment to define marriage as the union of a man and a woman.[54]

A 2006 APR poll found that 33% of Americans favored amending the U.S. Constitution to ban same-sex marriage, while 49% felt each state should make its own laws on marriage, and 18% were unsure.

A May 2006 Gallup poll found that 50% of Americans would favor amending the federal Constitution to ban same-sex marriage, while 47% were opposed, and 3% were undecided or did not respond.[55]

A 2006 ABC News poll found that 42% of Americans supported amending the U.S. Constitution, banning same-sex marriage.[56]

A 2011 AP-NCC poll found that 48% of Americans said they would favor such an amendment defining marriage as between a man and a woman, with about 40% strongly favoring such a change. However, 55% believe the issue should be handled at the state level.[57]

A 2012 Fox News poll found that 38% of American voters support a constitutional amendment banning same-sex marriage, while 53% oppose.[58]

A 2012 United Technologies/National Journal Congressional Connection poll found that only 24% of Americans agreed that Congress should “pass a constitutional amendment to ban same-sex marriage in every state regardless of state law.”[59]

References[edit source | edit]

  1. ^ California 2008 General Election ballot propositions
  2. ^ California Marriage Protection Act
  3. ^ Project, Developments in the Law: The Constitution and the Family, 93 Harv. L. Rev. 1156, 1274 (1980) (discussing Baker's posture as precedent); see, e.g. Pamela R. Winnick, Comment, The Precedential Weight of a Dismissal by the Supreme Court for Want of a Substantial Federal Question: Some Implications of Hicks v. Miranda, 76 Colum. L. Rev. 508, 511 (1976); Baker v. Nelson, 409 U.S. 810 (1972).
  4. ^ Citizens for Equal Protection v. Bruning, No. 05-2606 (8th Cir. July 14, 2006)
  5. ^ http://msnbcmedia.msn.com/i//MSNBC/Sections/NEWS/A_U.S.%20news/Life/gaymarriage.pdf
  6. ^ http://blogs.findlaw.com/ninth_circuit/2012/02/perry-v-brown-ninth-circuit-says-prop-8-is-unconstitutional.html
  7. ^ name="latimes.com">Prop 8: Gay marriages can resume in California, court rules
  8. ^ Cooperman, Alan. (February 14, 2004) "Little Consensus on Marriage Amendment: Even Authors Disagree on the Meaning of Its Text" Washington Post. Retrieved August 18, 2007.
  9. ^ "Marriage Amendment Preserves Male-Female Union". Fox News. May 16, 2002. Retrieved October 7, 2012. 
  10. ^ Shows, Ronnie, et al. (May 15, 2002) H.J.RES.93 Proposing an amendment to the Constitution of the United States relating to marriage United States House of Representatives, Library of Congress. Retrieved July 1, 2013.
  11. ^ a b Musgrave, Marilyn, et al. (May 21, 2003) H.J.RES.56 Proposing an amendment to the Constitution of the United States relating to marriage United States House of Representatives, Library of Congress. Retrieved August 19, 2007.
  12. ^ a b Wayne, Allard, et al. (November 25, 2003) S.J.RES.26 Proposing an amendment to the Constitution of the United States relating to marriage United States House of Representatives, Library of Congress. Retrieved August 19, 2007.
  13. ^ Savage, Charlie (November 24, 2003). "Frank sees referendum for ruling on gay marriage". Boston Globe. Retrieved August 19, 2013. 
  14. ^ "Federal Marriage Amendment Reworded to Allow Civil Unions". Christianity Today. 3/1/2004. Retrieved August 3, 2013. 
  15. ^ a b c Musgrave, Marilyn, et al. (23 September 2004) H.J.RES.106 Proposing an amendment to the Constitution of the United States relating to marriage United States House of Representatives, Library of Congress. Accessed 18 August 2007.
  16. ^ Allard, Wayne, et al. (22 March 2004) S.J.RES.30 Proposing an amendment to the Constitution of the United States relating to marriage United States Senate, Library of Congress. Accessed 18 August 2007.
  17. ^ a b c Allard, Wayne, et al. (7 July 2004) S.J.RES.40 Proposing an amendment to the Constitution of the United States relating to marriage United States Senate, Library of Congress. Accessed 1 September 2007.
  18. ^ Hulse, Carl (July 15, 2004). "Senators Block Initiative to Ban Same-Sex Unions". The New York Times. Retrieved 2009-06-16. 
  19. ^ (September 28, 2004) H.RES.801 Providing for consideration of the joint resolution (H.J. Res. 106) House Rules Committee. United States House of Representatives. Retrieved September 1, 2007.
  20. ^ a b c Musgrave, Marilyn, et al. (June 6, 2006) H.J.RES.88 Proposing an amendment to the Constitution of the United States relating to marriage United States House of Representatives, Library of Congress. Retrieved August 19, 2007.
  21. ^ a b c Allard, Wayne, et al. (January 24, 2005) S.J.RES.1 Proposing an amendment to the Constitution of the United States relating to marriage United States Senate, Library of Congress. Retrieved August 19, 2007.
  22. ^ a b (June 7, 2006) U.S. Senate Roll Call Votes 109th Congress - 2nd Session - Motion to Invoke Cloture on the Motion to Proceed to the Consideration of S. J. Res. 1 Clerk of the United States Senate. Retrieved August 18, 2007.
  23. ^ Kellman, Laurie (June 7, 2006). "Gay Marriage Ban Falls Short of Majority". The Washington Post. Associated Press. Retrieved 2009-07-07. 
  24. ^ (July 18, 2006) H.RES.918 Providing for consideration of the joint resolution (H.J. Res. 88) House Rules Committee. United States House of Representatives. Retrieved September 1, 2007.
  25. ^ Clerk of the House. (July 18, 2007) Final Vote Results For Roll Call 378 U.S. House of Representatives. Retrieved August 22, 2007.
  26. ^ "H.J.Res.89: Marriage Protection Amendment". OpenCongress.org. May 22, 2008. Retrieved 2009-07-07. 
  27. ^ "S. J. RES. 43". Library of Congress. Retrieved 2009-07-07. 
  28. ^ Jaffe, Alexandra (June 30, 2013). "Huelskamp defends amendment to ban gay marriage". The Hill. Retrieved July 17, 2013. 
  29. ^ Stolberg, Sheryl Gay (July 2, 2003). "White House Avoids Stand On Gay Marriage Measure". The New York Times. Retrieved 2009-07-07. 
  30. ^ State of the Union, January 20, 2004
  31. ^ Allen, Mike; Cooperman, Alan (February 25, 2004). "Bush Backs Amendment Banning Gay Marriage". The Washington Post. p. A1. Retrieved 2009-01-15. 
  32. ^ Kaufman, Marc; Allen (August 25, 2004). "Cheney Sees Gay Marriage as State Issue". Washington Post. Retrieved July 21, 2013.  Unknown parameter |fisrt2= ignored (help)
  33. ^ Cheney supports same-sex marriage 'on a state-by-state basis'
  34. ^ Bumiller, Elizabeth. (January 26, 2005) "President Discusses Issues With Black Leaders" The New York Times. Retrieved June 30, 2006.
  35. ^ (January 26, 2005) "Bush to agencies: Don't hire columnists to promote agendas" Associated Press. Retrieved June 30, 2006.
  36. ^ Drinkard, Jim; Memmott, Mark. (January 27, 2005) "HHS says it paid columnist for help" USA Today. Retrieved June 30, 2006.
  37. ^ Boehlert, Eric (January 27, 2005). "Third columnist caught with hand in the Bush till". Salon. Retrieved 2009-01-15. 
  38. ^ Dao, James (July 16, 2004). "Renewed State Efforts Made Against Same-Sex Marriage". The New York Times. Retrieved 2009-06-16. 
  39. ^ Bush, George W. (February 24, 2004) President Calls for Constitutional Amendment Protecting Marriage United States President. Retrieved August 18, 2007.
  40. ^ McClellan, Scott. (February 24, 2004) Press Briefing White House. Retrieved June 30, 2006.
  41. ^ McClellan, Scott. (February 25, 2004) Press Briefing White House. Retrieved June 30, 2006.
  42. ^ (October 26, 2004) "Bush's gay union stance irks conservatives" Associated Press. Retrieved June 30, 2006.
  43. ^ Federal Marriage Amendment to the U.S. Constitution: Recent events up to 2004 MAY ReligiousTolerance.org. Retrieved June 30, 2006.
  44. ^ Goodstein, Laurie; Yardley, William. (November 5, 2004) Bush Benefits From Efforts to Build a Coalition of the Faithful New York Times. Retrieved April 26, 2007.
  45. ^ (May 28, 2003) "Marriage Amendment: Oppose Writing Intolerance into the Constitution", American Civil Liberties Union. Retrieved June 30, 2006.
  46. ^ "Passage of the Federal Marriage Amendment will harm victims of domestic violence" Legal Momentum. Retrieved August 13, 2007.
  47. ^ Bischoff, Laura A. (October 15, 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. Retrieved August 18, 2007.
  48. ^ McDonnell, Robert F. (September 14, 2006) "Virginia Attorney General Legal Opinion on effect of State Marriage Amendment" Commonwealth of Virginia, Office of the Attorney General. Retrieved August 18, 2007.
  49. ^ Wasden, Lawrence G. (February 8, 2006) Attorney General Opinion No. 06-1 Regarding Proposed Amendment to the Idaho Constitution State of Idaho, Office of the Attorney General. Retrieved August 18, 2007.
  50. ^ Moyer, C.J. for Majority. (July 25, 2007) State of Ohio v. Carswell - Decision Supreme Court of Ohio. Retrieved August 18, 2007.
  51. ^ Carpenter, Dale. (June 1, 2006) The Federal Marriage Amendment: Unnecessary, Anti-Federalist, and Anti-Democratic Cato Institute. Retrieved June 30, 2006.
  52. ^ Should a marriage amendment also ban civil unions?
  53. ^ Nagourney, Adam (02/07/2012). "Court Strikes Down Ban on Gay Marriage in California". New York Times. Retrieved 2/07/2012. 
  54. ^ "National Poll Finds Most Americans Support A Constitutional Amendment to Defend Marriage". pulpithelps. Retrieved August 3, 2013. 
  55. ^ "FEDERAL MARRIAGE AMENDMENTS (FMA) TO THE U.S. CONSTITUTION". religioustolerance. Retrieved August 3, 2013. 
  56. ^ "Most Oppose Gay Marriage; Fewer Back an Amendment". CNN. June 5, 2006. Retrieved August 3, 2013. 
  57. ^ "AP-NCC Poll: Narrow majority supports legal recognition of gay marriage, as issue roils states". ap-gfkpoll. September 16, 2011. Retrieved August 3, 2013. 
  58. ^ "Fox News poll: Majority opposes gay marriage, doesn't want constitutional amendment". CNN. May 16, 2012. Retrieved August 3, 2013. 
  59. ^ "Public Opposes Gay Weddings at Military Facilities". National Journal. May 21, 2012. Retrieved August 3, 2013. 

External links[edit source | edit]