Federal Marriage Amendment

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The Federal Marriage Amendment (FMA), also referred to by proponents as the Marriage Protection Amendment, was a proposed amendment to the United States Constitution that would legally define marriage as a union of one man and one woman. The FMA would also prevent judicial extension of marriage rights to same-sex couples.

Contents

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 House of Representatives on July 18, 2006, when the motion 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 proposal and the 67 votes required to send the proposed amendment to the states for ratification. President George W. Bush endorsed this proposal and made it part of his campaign during the 2004 and 2006 election cycles. [1] [2]

Background and current law

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. 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 the Windsor decision in 2013, nearly all courts that have addressed the issue have held that states with laws defining marriage as a one-man, one-woman union cannot refuse to recognize same-sex marriages that were legally performed elsewhere and must permit all people, regardless of gender or sexual orientation, the right to marry. [2]

Same-sex marriage is currently legal in all US States. 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, commonly referred to as Prop 8 qualified for the 2008 General Election ballot. [3] Voted into law on November 4, 2008, it amended the California Constitution to provide that "Only marriage between a man and a woman is valid or recognized in California". Prop 8 was later found to be unconstitutional and same-sex marriage was allowed to resume. [4] Thirty states passed state constitutional amendments defining marriage as being between one man and one woman. On June 26, 2015, all amendments banning same-sex marriage were invalidated by the Supreme Court's ruling on Obergefell v. Hodges .

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 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 United States v. Windsor on June 26, 2013 and repealed by the Respect for Marriage Act on December 13, 2022.

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 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. [5]

In 2010, the United States District Court for the Northern District of California ruled [6] 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 same-sex 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. [7] On June 26, 2013, the U.S. Supreme Court, vacated the Ninth Circuit's ruling for lack of jurisdiction. Two days later the Ninth Circuit dissolved its stay of the district court's ruling, allowing same-sex marriage to resume in California. [8] In 2015 the Supreme Court held in Obergefell v. Hodges that the government could not refuse to recognize same-sex marriage.

Legislative history

The Federal Marriage Amendment has been introduced in the United States Congress many different times: in 2002, 2003, 2004, 2005, 2006, 2008, 2013, and 2015; none of which were successful.

2002

Ronnie Shows, sponsor of the first Federal Marriage Amendment Ronnie Shows bioguide.jpg
Ronnie Shows, sponsor of the first Federal Marriage Amendment

The original proposed Federal Marriage Amendment was written by the Alliance for Marriage under Matthew Daniels with the assistance of former Solicitor General and failed Supreme Court nominee Judge Robert Bork, Professor Robert P. George of Princeton University, and Professor Gerard V. Bradley of Notre Dame Law School. [9] [10] It was introduced in the 107th United States Congress in the House of Representatives on May 15, 2002, by Representative Ronnie Shows (D-Miss.) with 22 cosponsors, [11] 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. [12]

2003

The amendment was introduced again by Rep. Marilyn Musgrave (R-Colo.) on May 21, 2003, with the same wording proposed in 2002. [13] [14] 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. [13] On November 23, Rep. Barney Frank (D-Mass.) 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." [15]

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. [16] It was immediately referred to the Senate Committee on the Judiciary. [14]

2004

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: [17] [18] [19]

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. [19] Senators John Kerry of Massachusetts and John Edwards of North Carolina skipped the filibuster vote. [20] On July 15, 2004, the motion to proceed to consideration of the Amendment was withdrawn in the Senate. [19] Six Republicans voted with a majority of Democrats against cloture in the Senate. [21]

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. [17] [22] 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. [17]

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. 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". [23] [24]

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 48 nay votes to 49 yea votes, with the vote mostly following party lines with Democrats opposing and Republicans in favor. [24] [25] The 49 votes in support of the cloture motion were 11 votes short of the 60-vote supermajority (three-fifths) needed to end debate and force a vote on the Amendment itself. [24] Eight Republican Senators opposed or did not vote; four Democratic Senators favored or did not vote. [25] [26] The only Senators who changed their position from the 2004 vote to the 2006 vote were Senators Judd Gregg (R-N.H.) and Arlen Specter (R-Penn.), both of whom voted Yea in 2004 and Nay in 2006. [27]

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. [23] [28] 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. [23] 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. [29]

2008

On May 22, 2008, Rep. Paul Broun (R-Ga.) and 91 co-sponsors introduced H.J.Res.89, which proposed the enactment of FMA. [30] Senator Roger Wicker (R-Miss.) and eight other senators introduced similar legislation with S.J.Res.43 on June 25. [31]

2013

U.S. Representative Tim Huelskamp (R-Kansas) reintroduced the FMA (H.J.Res. 51) on June 28, 2013, in response to the U.S. Supreme Court decision striking down the Defense of Marriage Act in United States v. Windsor . [32] The bill, which had 58 cosponsors, never made it out of committee. [33]

2015

Huelskamp again introduced the Federal Marriage Amendment in 2015, during the 114th Congress, as H.J.Res. 32. The amendment garnered 37 cosponsors, all Republicans. It never made it out of committee. [34]

Political considerations

Bush administration's stance

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. [35] 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." [36] 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. [37] 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. [38] In 2009, Cheney stated his support for same-sex marriage on a state-by-state basis. [39]

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". [40] 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. [41] [42] 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. [43]

Influence on 2004 presidential election

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. [44]

Previously, on February 24, 2004, Bush called for an amendment which would have outlawed same-sex marriage, and which would have disallowed states from recognizing or enforcing same-sex 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." [45] The White House partly clarified Bush's position in a February 24, 2004 press conference [46] 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 chance of enacting civil unions. (McClellan also stated, however, that Bush did not personally support civil unions.) Similarly, at the February 25, 2004 press conference, [47] 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. [48]

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." [49]

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 were thought of as socially conservative at the time. 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. [50]

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

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. The Federal Marriage Amendment discriminates against the LGBT (Lesbian, Gay, Bisexual, Transgender) community. [51]

Federalism

Opponents of the FMA argued it would violate the states' rights to regulate marriage by federalizing the issue, which they said should be left to the states. Many used the federalism argument, including Senator John Kerry, Senator John McCain, and Representative Ron Paul, who opposed the FMA for several reasons, one of which that regulating marriage is not a proper role of the federal government. The author Jonathan Rauch wrote that "the proposed amendment strips power not from judges but from states," since the amendment would not allow any state to create same-sex marriage even by the rules of its own state-level democracy. "That conservatives would contemplate so striking a repudiation of federalism," Rauch wrote, "is a sign of the panic that same-sex marriage inspires on the right." [52] Furthermore, constitutionally defining marriage would have reversed the choices already made in states and territories including Massachusetts, Vermont, Connecticut, New Hampshire, New York, Iowa, and the District of Columbia.

Unmarried heterosexual couples

It is argued that the 2003 version of the FMA would have severely affected the ability of heterosexual unmarried couples to seek some degree of legal protection and/or provisions. [53]

Opponents of the FMA argue that it may complicate efforts to enforce laws against domestic abuse in heterosexual relationships involving unmarried couples. [54] 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". (The decisions were later reversed.) [55]

Supporters of the FMA asserted that this argument was a scare tactic and that the FMA would not prevent laws against domestic abuse from being applied to unmarried couples. [56] 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. [57] 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. [58]

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 have claimed that life for those in a heterosexual marriage are not materially affected by a constitutional marriage definition or legalization of same-sex marriage. They stated that the FMA was totally unnecessary because federal and state laws, combined with the state of the relevant constitutional doctrines at the time, already made court-ordered nationwide same-sex marriage unlikely for the foreseeable future. It was claimed therefore, that such an amendment was a solution in search of a problem. It was claimed that neither federal nor state courts were likely to order same-sex marriage under the traditional interpretation of the Constitution's Full Faith and Credit Clause. Nor, for the foreseeable future, it was claimed, were 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. This claim ultimately became untrue, as the Supreme Court of the United States ruled that denying the right of marriage to same-sex couples was unconstitutional under the Equal Protection Clause in its landmark 2015 ruling in Obergefell v. Hodges .

Institution of Marriage Amendment

The Concerned Women for America (CWA), an anti-feminist group, were concerned about the wording of the 2004 Federal Marriage Amendment. CWA criticized 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: [59]

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

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

Proponents of FMA argued that same-sex marriage advocates wanted to disregard federalism and use the judicial system to make same-sex marriage legal nationwide, and that only the Federal Marriage Amendment could forestall that.[ citation needed ]

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 force same-sex marriage upon the whole nation, no matter what the people of the individual states desire. 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 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. [60]

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. 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 ]

Opposite-sex marriage as necessary for child-rearing

FMA proponents argued that opposite-sex marriage has been given special legal protections, as the basis for child-rearing, and to legitimize lines of inheritance.

Legislative activity

Federal level

CongressShort titleBill number(s)SummaryDate introducedSponsor(s)# of cosponsorsLatest status
107th Congress Federal Marriage amendment H.J.Res. 93 Constitutional 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, 2002 Ronnie Shows
(D-MS)		22Died in the Committee on the Judiciary
108th Congress Federal Marriage Amendment H.J.Res. 56 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.May 21, 2003 Marilyn Musgrave
(R-CO)		131Died in the Committee on the Judiciary
S.J.Res.
43 Archived November 27, 2008, at the Wayback Machine 		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.November 25, 2003 Wayne Allard
(R-CO)		10Died in the Committee on the Judiciary
S.J.Res.
40 Archived December 15, 2012, at the Wayback Machine 		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, 2004 Wayne Allard
(R-CO)		19Failed cloture motion (48-50)
Proposing an amendment to the Constitution of the United States relating to marriage. H.J.Res. 106 Constitutional 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, 2004 Marilyn Musgrave
(R-CO)		121Failed in House (227-186)
109th Congress Marriage Protection Amendment S.J.Res.
1 Archived December 12, 2012, at the Wayback Machine 		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, 2005 Wayne Allard
(R-CO)		32Failed cloture motion (49-48)
H.J.Res. 88 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 6, 2006 Marilyn Musgrave
(R-CO)		134Failed in House (236-187)
110th Congress H.J.Res. 89 Constitutional 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, 2008 Paul Broun
(R-GA)		91Died in the Subcommittee on the Constitution and Civil Justice
S.J.Res.
43 Archived January 5, 2011, at the Wayback Machine 		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, 2008 Roger Wicker
(R-MS)		17Died in the Committee on the Judiciary
113th Congress Proposing an amendment to the Constitution of the United States relating to marriage. H.J.Res. 51 Constitutional 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, 2013 Tim Huelskamp
(R-KS)		58Referred to the Subcommittee on the Constitution and Civil Justice
114th Congress Proposing an amendment to the Constitution of the United States relating to marriage. H.J.Res. 32 February 12, 2015 Tim Huelskamp
(R-KS)		30Died in Congress. Never made it out of the committee due to not enough votes on the proposal.

Article V convention initiated by state legislatures

On April 2, 2014, the Alabama House of Representatives adopted a joint resolution calling for an Article V convention to draft an amendment to the federal Constitution to define marriage as the union of only one man and only one woman in all jurisdictions of the United States. [61]

Public opinion

Nationwide polling

Polling on the subject has fluctuated widely, with opposition for such an amendment increasing steadily for more than a decade. Beginning in 2010 polls have found majority support for legal recognition of same-sex marriage. A Gallup poll conducted in May 2014 found that 55% of Americans support allowing marriage for same-sex couples, the largest percentage ever measured by the organization. [62] The same poll found only 42% opposed, and 4% had no opinion on the issue.

A 2012 Fox News poll found that 38% of American voters support a constitutional amendment banning same-sex marriage, while 53% oppose. [63] 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." [64]

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. [65]

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. In May 2006, a 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. [66] An ABC News poll that year found that 42% of Americans supported amending the U.S. Constitution, banning same-sex marriage. [67]

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. [68]

State polling

Public opinion varies widely between different states. Only two states, Mississippi and Alabama, had public opinion generally more opposed to same sex marriage than in favor in 2017, with only Alabama having an absolute majority, 51%, opposed; in Mississippi, there was plurality opposition. [69] In Louisiana, Tennessee, North Carolina, and West Virginia, there was plurality support; in all other states, there was absolute majority support. The lowest approval of same sex marriage was 41% in Alabama. The highest was 80% in Vermont and Massachusetts.

Related Research Articles

<span class="mw-page-title-main">Defense of Marriage Act</span> 1996 U.S. federal law, repealed in 2022

The Defense of Marriage Act (DOMA) was a United States federal law passed by the 104th United States Congress and signed into law by President Bill Clinton on September 21, 1996. It banned federal recognition of same-sex marriage by limiting the definition of marriage to the union of one man and one woman, and it further allowed states to refuse to recognize same-sex marriages granted under the laws of other states.

This is a list of notable events in the history of LGBT rights that took place in the year 2004.

The Flag Desecration Amendment is a proposed addition to the Constitution of the United States that would allow the U.S. Congress to prohibit by statute and provide punishment for the physical "desecration" of the flag of the United States. The concept of flag desecration continues to provoke a heated debate over protecting a national symbol, preserving free speech, and upholding the liberty said to be represented by that national symbol. While the proposal passed by the two-thirds majority required in the House of Representatives several times, in each instance it failed to attain the same required super-majority in the Senate, or was never voted upon in the Senate at all.

<span class="mw-page-title-main">Utah Constitutional Amendment 3</span> 2004 referendum

Utah Constitutional Amendment 3 was an amendment to the Utah state constitution that sought to define marriage as a union exclusively between a man and woman. It passed in the November 2, 2004, election, as did similar amendments in ten other states.

<span class="mw-page-title-main">U.S. state constitutional amendments banning same-sex unions</span>

Prior to the Supreme Court's decision in Obergefell v. Hodges (2015), U.S. state constitutional amendments banning same-sex unions of several different types passed, banning legal recognition of same-sex unions in U.S. state constitutions, referred to by proponents as "defense of marriage amendments" or "marriage protection amendments." These state amendments are different from the proposed Federal Marriage Amendment, which would ban same-sex marriage in every U.S. state, and Section 2 of the Defense of Marriage Act, more commonly known as DOMA, which allowed the states not to recognize same-sex marriages from other states. The amendments define marriage as a union between one man and one woman and prevent civil unions or same-sex marriages from being legalized, though some of the amendments bar only the latter. The Obergefell decision in June 2015 invalidated these state constitutional amendments insofar as they prevented same-sex couples from marrying, even though the actual text of these amendments remain written into the state constitutions.

The Tennessee Marriage Protection Amendment, also known as Tennessee Amendment 1 of 2006, is a state constitutional amendment banning same-sex unions. The referendum was approved by 81% of voters. It specified that only a marriage between a man and a woman could be legally recognized in the state of Tennessee. This prohibited same-sex marriages within the state, reinforcing previously existing statutes to the same effect until it was overturned by the Obergefell v. Hodges ruling in June 2015.

In response to court action in a number of states, the United States federal government and a number of state legislatures passed or attempted to pass legislation either prohibiting or allowing same-sex marriage or other types of same-sex unions.

<span class="mw-page-title-main">2006 Wisconsin Referendum 1</span>

Wisconsin Referendum 1 of 2006 was a referendum on an amendment to the Wisconsin Constitution that would invalidate same-sex marriages or any substantially similar legal status. The referendum was approved by 59% of voters during the general elections in November 2006. All counties in the state voted for the amendment except Dane County, which opposed it. The constitutional amendment created by Referendum 1 has been effectively nullified since June 26, 2015, when the United States Supreme Court ruled in Obergefell v. Hodges that state-level bans on same-sex marriage are unconstitutional.

<span class="mw-page-title-main">2005 Texas Proposition 2</span>

Proposition 2 was a referendum for a state constitutional amendment placed on the ballot by the Texas legislature and approved by the voters at the November 8, 2005 general election. The measure added a new provision to the Texas Constitution, Article 1, Section 32, which provides that "Marriage in this state shall consist only of the union of one man and one woman", and "This state or a political subdivision of this state may not create or recognize any legal status identical or similar to marriage." Texas thus became the nineteenth US state to adopt constitutional amendment banning same-sex marriage. It was the most populous state to adopt a constitutional ban on same-sex marriage until California passed its ban in November 2008. The amendment was later invalidated in June 2015 after the Supreme Court legalized same-sex marriage nationwide in the Obergefell v. Hodges decision, though the amendment remains in the Texas Constitution.

<span class="mw-page-title-main">Same-sex marriage in Hawaii</span>

Same-sex marriage has been legal in Hawaii since December 2, 2013. The Hawaii State Legislature held a special session beginning on October 28, 2013, and passed the Hawaii Marriage Equality Act legalizing same-sex marriage. Governor Neil Abercrombie signed the legislation on November 13, and same-sex couples began marrying on December 2. Hawaii also allows both same-sex and opposite-sex couples to formalize their relationships legally in the form of civil unions and reciprocal beneficiary relationships. Civil unions provide the same rights, benefits, and obligations of marriage at the state level, while reciprocal beneficiary relationships provide a more limited set of rights. Hawaii was the fifteenth U.S. state to legalize same-sex marriage.

The Alliance for Marriage (AFM), founded in 1999, was a non-profit organization based in the United States. The organization described itself as "dedicated to promoting marriage and addressing the epidemic of fatherless families in the United States." The group was founded by Matt Daniels and was headquartered in Virginia. AFM is most known for having drafted the proposed Federal Marriage Amendment (FMA) to the United States Constitution, introduced originally by Rep. Ronnie Shows (D-MS). The amendment would define marriage in the United States as the union of one man and one woman. The amendment was later renamed the Marriage Protection Amendment, which, as of 2014, last failed a Senate cloture motion in June 2006. The organization was defunct as of May 2021, although its website, with a rarely-updated blog, remained active until at least October 2020.

<span class="mw-page-title-main">2008 Florida Amendment 2</span> Referendum on legally defining marriage as heterosexual

Florida Amendment 2 is an amendment made to the constitution of the U.S. state of Florida in 2008. It added Article I, Section 27 to the constitution, which defines marriage as a union only between one man and one woman, and thus bans the creation of similar unions, such as civil unions or same-sex marriage.

Same-sex marriage has been fully recognized in the U.S. state of Minnesota since August 1, 2013. Same-sex marriages have been recognized if performed in other jurisdictions since July 1, 2013, and the state began issuing marriage licenses to same-sex couples on August 1, 2013. After 51.9% of state voters rejected a constitutional amendment to ban same-sex marriage in November 2012, the Minnesota Legislature passed a same-sex marriage bill in May 2013, which Governor Mark Dayton signed on May 14, 2013. Minnesota was the second state in the Midwest, after Iowa, to legalize marriage between same-sex couples, and the first in the region to do so by enacting legislation rather than by court order. Minnesota was the first state to reject a constitutional amendment banning same-sex marriage, though Arizona rejected one in 2006 that banned all legal recognition and later approved one banning only marriage.

Same-sex marriage has been legally recognized in Pennsylvania since May 20, 2014, when a U.S. federal district court judge ruled that the state's 1996 statutory ban on recognizing same-sex marriage was unconstitutional. Governor Tom Corbett announced the following day that he would not appeal the decision. Pennsylvania had previously prohibited the recognition of same-sex marriage by statute since 1996, but had never added such a ban to its State Constitution.

<span class="mw-page-title-main">Respect for Marriage Act</span> 2022 U.S. federal law

The Respect for Marriage Act is a landmark United States federal law passed by the 117th United States Congress in 2022 and signed into law by President Joe Biden. It repeals the Defense of Marriage Act (DOMA), requires the U.S. federal government and all U.S. states and territories to recognize the validity of same-sex and interracial civil marriages in the United States, and protects religious liberty. Its first version in 2009 was supported by former Republican U.S. Representative Bob Barr, the original sponsor of DOMA, and former President Bill Clinton, who signed DOMA in 1996. Iterations of the proposal were put forth in the 111th, 112th, 113th, 114th, and 117th Congresses.

<span class="mw-page-title-main">North Carolina Amendment 1</span>

North Carolina Amendment 1 is a partially overturned legislatively referred constitutional amendment in North Carolina that amended the Constitution of North Carolina to add ARTICLE XIV, Section 6, which prohibit the state from recognizing or performing same-sex marriages, civil unions or civil union equivalents by defining male–female marriage as "the only domestic legal union" considered valid or recognized in the state. It did not prohibit domestic partnerships in the state and also constitutionally protected same-sex and opposite-sex prenuptial agreements, which is the only part that is still in effect today. On May 8, 2012, North Carolina voters approved the amendment, 61% to 39%, with a voter turnout of 35%. On May 23, 2012, the amendment took effect.

Same-sex marriage has been legal in Virginia since October 6, 2014, following the decision of the U.S. Supreme Court not to hear an appeal of the Fourth Circuit Court of Appeals' ruling in Bostic v. Schaefer. Same-sex marriages subsequently began at 1:00 p.m. on October 6 after the Fourth Circuit issued its mandate, and since then Virginia has performed legal marriages of same-sex couples and recognized out-of-state same-sex marriages. Previously, the state had passed a statute prohibiting same-sex marriage in 1975, and further restrictions were added in 1997 and 2004, which made "void and unenforceable" any arrangements between same-sex couples bestowing the "privileges or obligations of marriage". Voters approved an amendment to the Constitution of Virginia reinforcing the existing laws in 2006. On January 14, 2014, a U.S. district court judge ruled in Bostic that Virginia's statutory and constitutional ban on the state recognition of same-sex marriages were unconstitutional, a decision upheld by the Fourth Circuit on July 28, 2014.

Matthew Daniels is an American academic and human rights scholar.

A campaign finance reform amendment refers to any proposed amendment to the United States Constitution to authorize greater restrictions on spending related to political speech, and to overturn Supreme Court rulings which have narrowed such laws under the First Amendment. Several amendments have been filed since Citizens United v. Federal Election Commission and the Occupy movement.

References

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  2. 1 2 Scott Dodson, "The Peculiar Federal Marriage Amendment." Arizona State Law Journal 36 (2004): 783+ online.
  3. ↑ California 2008 General Election ballot propositions Archived June 17, 2009, at the Wayback Machine
  4. ↑ "California Marriage Protection Act" (PDF). Archived from the original (PDF) on July 21, 2011. Retrieved June 19, 2008.
  5. ↑ 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).
  6. ↑ "Archived copy" (PDF). Archived from the original (PDF) on June 14, 2011. Retrieved August 5, 2010.{{cite web}}: CS1 maint: archived copy as title (link)
  7. ↑ Hagan, Robyn (February 7, 2012). "Perry v. Brown: Ninth Circuit Says Prop 8 is Unconstitutional - Civil Rights Law - U.S. Ninth Circuit". Blogs.findlaw.com. Retrieved October 14, 2013.
  8. ↑ Prop 8: Gay marriages can resume in California, court rules
  9. ↑ Cooperman, Alan. (February 14, 2004) "Little Consensus on Marriage Amendment: Even Authors Disagree on the Meaning of Its Text" The Washington Post . Retrieved August 18, 2007.
  10. ↑ SchlesingerStaff, Jacob M. (February 24, 2004). "How Gay Marriage Thrust 2 Outsiders Onto Center Stage". The Wall Street Journal. Retrieved March 3, 2022.
  11. ↑ "Marriage Amendment Preserves Male-Female Union". Fox News. May 16, 2002. Retrieved October 7, 2012.
  12. ↑ 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.
  13. 1 2 Musgrave, Marilyn, et al. (May 21, 2003) H.J.RES.56 Proposing an amendment to the Constitution of the United States relating to marriage [ permanent dead link ] United States House of Representatives, Library of Congress. Retrieved August 19, 2007.
  14. 1 2 Wayne, Allard, et al. (November 25, 2003) S.J.RES.26 Proposing an amendment to the Constitution of the United States relating to marriage [ permanent dead link ] United States House of Representatives, Library of Congress. Retrieved August 19, 2007.
  15. ↑ Savage, Charlie (November 24, 2003). "Frank sees referendum for ruling on gay marriage". Boston Globe. Retrieved August 19, 2013.
  16. ↑ "Federal Marriage Amendment Reworded to Allow Civil Unions". Christianity Today. March 1, 2004. Retrieved August 3, 2013.
  17. 1 2 3 Musgrave, Marilyn, et al. (September 23, 2004) H.J.RES.106 Proposing an amendment to the Constitution of the United States relating to marriage Archived November 12, 2008, at the Wayback Machine United States House of Representatives, Library of Congress. Accessed August 18, 2007.
  18. ↑ Allard, Wayne, et al. (March 22, 2004) S.J.RES.30 Proposing an amendment to the Constitution of the United States relating to marriage Archived July 4, 2016, at the Wayback Machine United States Senate, Library of Congress. Accessed August 18, 2007.
  19. 1 2 3 Allard, Wayne, et al. (July 7, 2004) S.J.RES.40 Proposing an amendment to the Constitution of the United States relating to marriage Archived November 12, 2008, at the Wayback Machine United States Senate, Library of Congress. Accessed September 1, 2007.
  20. ↑ Hulse, Carl (July 15, 2004). "Senators Block Initiative to Ban Same-Sex Unions". The New York Times. Retrieved June 16, 2009.
  21. ↑ Hulse, Carl (July 14, 2004). "Senate Vote Blocks Effort to Ban Gay Marriage in Constitution". The New York Times. ISSN   0362-4331 . Retrieved May 29, 2018.
  22. ↑ (September 28, 2004) H.RES.801 Providing for consideration of the joint resolution (H.J. Res. 106) Archived October 9, 2014, at the Wayback Machine House Rules Committee. United States House of Representatives. Retrieved September 1, 2007.
  23. 1 2 3 Musgrave, Marilyn, et al. (June 6, 2006) H.J.RES.88 Proposing an amendment to the Constitution of the United States relating to marriage Archived November 11, 2008, at the Wayback Machine United States House of Representatives, Library of Congress. Retrieved August 19, 2007.
  24. 1 2 3 Allard, Wayne, et al. (January 24, 2005) S.J.RES.1 Proposing an amendment to the Constitution of the United States relating to marriage Archived November 12, 2008, at the Wayback Machine United States Senate, Library of Congress. Retrieved August 19, 2007.
  25. 1 2 (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.
  26. ↑ "Gay marriage ban defeated in Senate vote". msnbc.com. June 7, 2006. Retrieved May 29, 2018.
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  29. ↑ Clerk of the House. (July 18, 2007) Final Vote Results For Roll Call 378 U.S. House of Representatives. Retrieved August 22, 2007.
  30. ↑ "H.J.Res.89: Marriage Protection Amendment". OpenCongress.org. May 22, 2008. Retrieved July 7, 2009.
  31. ↑ "S. J. RES. 43". Library of Congress. Archived from the original on November 27, 2008. Retrieved July 7, 2009.
  32. ↑ Jaffe, Alexandra (June 30, 2013). "Huelskamp defends amendment to ban gay marriage". The Hill. Retrieved July 17, 2013.
  33. ↑ "H.J.Res.51 - 113th Congress (2013-2014): Marriage Protection Amendment". July 15, 2013.
  34. ↑ "H.J.Res.32 - 114th Congress (2015-2016): Marriage Protection Amendment". February 12, 2015.
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  36. ↑ State of the Union, January 20, 2004
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  38. ↑ Kaufman, Marc; Allen, Mike (August 25, 2004). "Cheney Sees Gay Marriage as State Issue". Washington Post. Retrieved July 21, 2013.
  39. ↑ Cheney supports same-sex marriage 'on a state-by-state basis'
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  44. ↑ Dao, James (July 16, 2004). "Renewed State Efforts Made Against Same-Sex Marriage". The New York Times. Retrieved June 16, 2009.
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  51. ↑ "Frequently Asked Questions about the Federal Marriage Amendment and Gay Marriage".
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  57. ↑ Wasden, Lawrence G. (February 8, 2006) Attorney General Opinion No. 06-1 Regarding Proposed Amendment to the Idaho Constitution Archived November 26, 2007, at the Wayback Machine State of Idaho, Office of the Attorney General. Retrieved August 18, 2007.
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  61. ↑ "Alabama House approves call to put same-sex marriage ban in U.S. Constitution". Montgomery Advertiser. April 2, 2014. Archived from the original on April 12, 2014. Retrieved April 3, 2014.
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  64. ↑ "Public Opposes Gay Weddings at Military Facilities". National Journal. May 21, 2012. Retrieved August 3, 2013.
  65. ↑ "AP-NCC Poll: Narrow majority supports legal recognition of gay marriage, as issue roils states". ap-gfkpoll. September 16, 2011. Retrieved August 3, 2013.
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