The Federal Marriage Amendment (FMA) is a proposed amendment to the United States Constitution that legislates a federal definition of marriage as a union of a man and a woman and prevents subsequent legislative and court action from extending marriage-like rights to same-sex and other unmarried couples.
Federal and state government
Civil marriage, as a legal union, has thus far been defined by state law in accord with the principles of federalism. As with other issues, the state is free to set limits to the circumstances in which marriage may be permitted, and judicial interpretation thereof. It also defines how local governments may interpret the law, and the process by which local governments can initiate review of cases in question. After the city of San Francisco, California began to license same-sex marriages on February 12, 2004, a wave of activity on both sides of the issue erupted.
Gay rights supporters have long sought the opportunity for same-sex couples to enjoy the same rights as married couples, while social conservatives, alarmed by the imminent state recognition for gay unions in several regions of the country, called for the proposed federal amendment as a way to stop recent developments in Massachusetts and in other states.
Proposed amendment
The amendment originally proposed by Rep. Marilyn Musgrave in 2002 consisted of two clauses (as discussed below, Ms. Musgrave has now introduced a new version modifying the second sentence):
- 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 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 ordinances, codes and regulations.
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:
- Joint parenting, adoption; custody, and child visitation rights
- Next-of-kin "status" for hospital visitation and medical decisions
- Joint insurance policies
- Separation and divorce protections
- Immigration and residency exemptions/benefits
- Tax benefits
- Legal benefits
- Veteran’s benefits
- Inheritance benefits
- Joint filing of official documents (tax returns, customs claims, etc.)
- Death benefits
- Crime victim recovery benefits
-
Tort benefits
- Domestic violence relief (restraining and protection orders)
- Judicial protection, including immunity from testifying against one's partner
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 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 prohibited 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.
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 civil unions or other "legal incidents" of marriage. However, most legal scholars still question whether civil unions would be permitted under this revised language.
Process
Before it could 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 38 (three-fourths) of the state legislatures. The FMA was introduced in the House on May 15, 2002, and again on May 21, 2003, by Representative Marilyn Musgrave (R-Colorado). Three-fourths of states already have enacted laws in accord with the similarly-worded Defense of Marriage Act, but these laws do not constitute ratification of the FMA. President George W. Bush announced his support for a similar amendment on February 24, 2004. The chief sponsor of the amendment in the Senate is Wayne Allard (R-Colorado).
Although the FMA was widely seen as not having the two-thirds vote necessary to pass either House of Congress, its introduction was seen as a effort by the Republican Party to create a campaign issue that would help George W. Bush in his election campaign against John Kerry and John Edwards by portraying the issue as an example of what the Bush campaign calls mainstream values.
To prevent this, the counter-strategy of the Democratic Party involved avoiding a direct vote on the amendment and avoiding Kerry and Edwards having to directly take a stand on the issue. Thus 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.
Early in January, 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 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 gay marriage. [1] 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 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. [2] [3] 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.
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 personally opposed civil unions.
Previously, on February 24, 2004, Bush called for an amendment which would have outlawed gay marriage, and which would have disallowed state constitutions from recognizing or enforcing gay civil unions. Although not widely publicized outside of the gay press, 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." (Note that it is possible to support vague and undefined "legal arrangements," such as power-of-attorney rights or the right to leave money to a gay partner, for example, and to simultaneously oppose all forms of "civil unions.") The White House partly clarified Bush's position in a February 24, 2004 press conference with White House Press Secretary Scott McClellan, who stated that by calling on the FMA to permit states the possibility of creating other "legal arrangments," 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 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."[4] Though the new language would have temporarily allowed hypothetical civil unions to be enacted by state legislatures, it would have prevented both federal and state constitutions the ability to uphold such laws. In other words, states could enact civil unions, which would have been in turn struck down by court cases relying on the interpretation of the revised FMA language. 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 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. [5] 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 Christan 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. [6] But the question of what "moral values" means is open to much interpretation. Take, for example, the state of Minnesota, 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 principle 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 Southerns, and 67% were evangelicals.
Others claim that moral issues did not cause Bush's victory, since most Americans are progressive about acknowledging equal rights to same-sex couples. But the way the Federal Marriage Amendment was introduced, specifically forced an "all or nothing" approach to the issue, may have benefited the GOP.
Proponent arguments
The proposal is a reaction to concerns about the constitutionality of the Defense of Marriage Act (DOMA), a federal law signed by Bill Clinton in 1996, which has a similar definition of marriage. It also granted states the right to refuse to recognize same-sex marriages performed in other states. Concerns about DOMA are that it conflicts with the Constitution's Full Faith and Credit clause. That clause requires all states to recognize the "acts, records and proceedings" of other states. This is the reason marriages and other legal contracts agreed upon in one state are recognized nationally.
Proponents claim that marriage is a privileged union between a man and a woman, not a civil right, and to confer authority to state legislatures over all questions of benefits. FMA is intended to provide a constitutional reaffirmation of opposite-sex marriage, and supporters hope that passage of the amendment will absolve communities and corporations from any obligation to accord marital rights to same-sex or unmarried opposite-sex unions. Many feel that judges have overstepped the limits of their office to overturn legislative laws, and that the FMA is necessary for that reason.
Some supporters believe that the federal government should enshrine heterosexual marriage. They assert that extending marriage rights to homosexual or unmarried heterosexual couples would be legislating morality and violating cultural religious traditions.
Some proponents of an amendment have argued for the first sentence while against the second.
There are, additionally, concerns about abuse of the Full Faith and Credit clause to force a law from one state onto another state, effectively circumventing lawmakers and voters in the target state and diminishing a state's power to create law. This principle could be applied to divorce and family law, business contracts and incorporated businesses.
Churches have concerns that legalization of same-sex marriage could lead to lawsuits against persons, churches or businesses who refuse to perform a marriage ceremony on religious or moral grounds.
Opponent arguments
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.
States' rights
Another opposing force are states' rights advocates, who oppose a law that would federalize marriage, which since the founding of the country has been under the purview of the individual states.
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 she did die 14 days after the removal of her feeding tube).
Separation of Church and State
Some liberal religious groups, and others 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.
See also
References
- "Marriage will be defined nationally — but how?". USAToday.com.
External links
Last updated: 10-15-2005 23:07:25
Last updated: 10-29-2005 02:13:46
