Federal Marriage Amendment

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The Federal Marriage Amendment (FMA) is a proposed amendment to the United States Constitution that would assert a federal definition of marriage as a heterosexual union of a man and a woman. The proposed amendment comes in the context of a larger politcal debate over same-sex marriages, which became reanimated after cases of overt activism revealed that social attitudes, state laws, and civil laws have leaned towards the acceptance and civil sanction of these "marriages."

"Marriage," as a social and legal entity, has thus far been defined by state law in accord with the principles of federalism. As with other issues, the state has free rein to set limits to the circumstances in which marriage may be permitted, and judicial interpretation thereof. It also defines how its local governments may interpret the law, and the process by which local governments can instigate a review of the case in question. After San Francisco County began to license same-sex marriages in February, 2004, a wave of activism on both sides of the issue erupted. Gays had long sought the opportunity to challenge state restrictions upon their private unions; while conservatives, upon viewing the imminence of their acceptance, called for the proposed federal amendment as a way to thwart recent developments in Massachussets and other states.

Critics point to the timing of the Republican-backed measure as simply a pseudopopulist political manoever that attempts to make the same-sex marriage issue factor more prominently in the current Presidential campaign. It is claimed that the differences on the issue hopes to cast US President George W. Bush in a more "moral" light against John Kerry. However, the American public does not appear to consider the gay marriage issue as very important; one poll showed it ranked only 22nd in a list of 23 political issues, sorted by "importance" to the questionee.

Contents

Proposed amendment

The amendment proposed by Representative Marilyn Musgrave consists of two clauses:

[1.] Marriage in the United States shall consist only of the union of a man and a woman. [2.] 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 provide an official definition of legal marriage in the United States. To some, this is a reasonable measure which defends the family and the institution of marriage. To others, it is an unfair means of excluding same-sex couples from that institution.

The second sentence goes 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.

It has been generally accepted that the FMA would bar state courts from requiring local governments to allow same-sex partners marriage or domestic partnership, or civil union status ("the legal incidents thereof"). Domestic partnership status has in the past been used to guarantee local employer domestic partner health insurance requirements and enforce inheritance rights of unmarried heterosexual or homosexual couples. It is unclear as to what effect it would have on the enforceability of state or local domestic partner or civil union laws. Some supporters of the amendment claim that it does not prevent state or local governments from passing civil union or domestic partnership laws but some legal experts suggest that is not entirely true. These legal experts claim that the second sentence of the amendment would probably in effect prohibit civil unions, domestic partnerships, and other laws granting legal incidents of marriage by making such laws unenforceable in courts.

The controversy surrounding the second sentence of the original amendment has led to an alternative version that only includes the first sentence. However, only the original amendment was debated in the Senate when it came up for a vote on July 14, 2004.

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 conflict 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 union between a man and a woman, not a civil rights issue, and preserve the current authority of state legislatures over all questions of benefits.1 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 legitimate (i.e. voted upon) laws, and that the FMA is necessary for that reason.

Some supporters believe that the federal government should protect heterosexual marriage, characterizing allowing gay couples to marry as an attack. They assert that extending marriage rights to homosexual or unmarried heterosexual couples would be legislating morality and in violation of cultural tradition.

Some proponents of an amendment have argued for the first sentence while against the second.

Opponent arguments

Gay rights

Gay rights advocates oppose the amendment, calling it discriminatory and an illicit attempt to legislate morality. 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 advocates of domestic partnership has partially relied on constutitional arguments to convince legislators and the public.

Lambda Legal Defense, a gay rights legal advocacy group, said that the campaign for 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).

On the other hand, many people consider some other amendments, such as the 16th or the 22nd, to be restrictions on civil rights as well. Other advocates, such as San Francisco mayor Gavin Newsom (whose city has been marrying gay couples in defiance of California statute) have echoed this argument.

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 traditionally been under the purview of the individual states.

The second sentence of Musgrave's amendment prohibits each State constitution, not just the federal constitution, from being interpreted as requiring that State to recognise gay marriages. Even the first sentence moves the definition of marriage from State purview to the federal level.


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. 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).

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 48 votes in support of the cloture motion were 12 votes short of the three-fifths 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. The FMA's supporters have said that they will reintroduce it at a later stage.

See also

References

  1. "Marriage will be defined nationally — but how?". USAToday.com.

External links


References

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