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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 rights to unmarried couples.
Civil marriage, as a legally protected social institution, 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 instigate a review of the case in question. After the city of San Francisco, California began to license same-sex marriages in February 2004, a wave of activism on both sides of the issue erupted.
Gay rights activists 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 Massachussetts and other states.
Some critics of the measure have dismissed it as a Republican campaign ploy. They point to the timing of the Republican-backed measure as evidence that it is simply a political maneuver intended to make same-sex marriage figure more prominently in the 2004 presidential campaign. Texas Governor George W. Bush's assertion in a February 2000 Republican primary debate that this issue is a state issue provides further evidence.
Some advocates have claimed that the candidates' positions on the issue of same-sex marriage show that President Bush is more "moral" than presidential candidate John Kerry: Bush stands in opposition while Kerry is more ambivalent (opposing same-sex marriage but also opposing a federal amendment that effectively bans it). Kerry supporters have argued that his position is more in line with the sentiments of the majority of Americans at this time; against or uncertain about same-sex marriage but more confident that it should be an issue individual states should have some power to resolve.
In general it appears that the American public does not consider the same-sex marriage issue to be a political priority; one poll showed it ranked 22nd in a list of 23 political issues, sorted by "importance" to the questionee. However, many see the issue as being more significant in presidental politics than these numbers suggest, because it may influence the votes of swing voters in some closely contested states, particularly in the South.
The amendment proposed by Rep. Marilyn Musgrave consists of two clauses:
The first sentence would provide an official definition of legal marriage in the United States. Proponents claim that this is a reasonable measure, based on established custom, which defends the family and the institution of marriage. To others, it is an unfair means of excluding same-sex couples from receiving benefits 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"). This seems to prohibit any court from ordering that equal civil rights be granted among homosexual couples, such as these spousal exemptions and benefits:
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.
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 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. 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.
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.
Gay rights advocates oppose the amendment, calling it discriminatory. They state that same-sex marriage is necessary in order to give gays the privileges which marriage grants (see the partial list above), and that creating a special "civil union" status for them 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 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 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.) Advocates such as San Francisco mayor Gavin Newsom, whose city has been marrying gay couples in defiance of California statute, have echoed this argument.
Some opponents of the FMA point out that allowing same-sex couples to marry does not prevent opposite-sex 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.
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.
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 same-sex marriages. Even the first sentence moves the definition of marriage from State purview to the federal level.
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.
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. The FMA's supporters have said that they will reintroduce it at a later stage.
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