Federal Marriage Amendment
Encyclopedia
The Federal Marriage Amendment H.J. Res. 56 (FMA) (also referred to by proponents as the Marriage Protection Amendment) was a proposed amendment
Article Five of the United States Constitution
Article Five of the United States Constitution describes the process whereby the Constitution may be altered. Altering the Constitution consists of proposing an amendment and subsequent ratification....

 to the United States Constitution
United States Constitution
The Constitution of the United States is the supreme law of the United States of America. It is the framework for the organization of the United States government and for the relationship of the federal government with the states, citizens, and all people within the United States.The first three...

 which would have limited marriage
Marriage
Marriage is a social union or legal contract between people that creates kinship. It is an institution in which interpersonal relationships, usually intimate and sexual, are acknowledged in a variety of ways, depending on the culture or subculture in which it is found...

 in the United States
United States
The United States of America is a federal constitutional republic comprising fifty states and a federal district...

 to unions of one man
Man
The term man is used for an adult human male . However, man is sometimes used to refer to humanity as a whole...

 and one woman
Woman
A woman , pl: women is a female human. The term woman is usually reserved for an adult, with the term girl being the usual term for a female child or adolescent...

. The FMA would also have prevented judicial extension of marriage rights to same-sex or other unmarried heterosexual couples, as well as preventing polygamy
Polygamy
Polygamy is a marriage which includes more than two partners...

.
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 (currently thirty-eight). The most recent Congressional vote to take place on the proposed Amendment occurred in the United States House of Representatives
United States House of Representatives
The United States House of Representatives is one of the two Houses of the United States Congress, the bicameral legislature which also includes the Senate.The composition and powers of the House are established in Article One of the Constitution...

 on July 18, 2006, when the Amendment failed 236 yea to 187 nay votes, falling short of the 290 yea votes required for passage in that body. The Senate
United States Senate
The United States Senate is the upper house of the bicameral legislature of the United States, and together with the United States House of Representatives comprises the United States Congress. The composition and powers of the Senate are established in Article One of the U.S. Constitution. Each...

 has only voted on cloture
Cloture
In parliamentary procedure, cloture is a motion or process aimed at bringing debate to a quick end. It is also called closure or, informally, a guillotine. The cloture procedure originated in the French National Assembly, from which the name is taken. Clôture is French for "ending" or "conclusion"...

 motions with regard to the proposed Amendment, the last of which was on June 7, 2006 when the motion failed 49 yea to 48 nay votes, falling short of the 60 yea votes required to proceed to consideration of the Amendment and the 67 votes which would be required to pass the amendment.

The role of states

In the United States, civil marriage is governed by state law
State law
In the United States, state law is the law of each separate U.S. state, as passed by the state legislature and adjudicated by state courts. It exists in parallel, and sometimes in conflict with, United States federal law. These disputes are often resolved by the federal courts.-See also:*List of U.S...

. 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
United States Constitution
The Constitution of the United States is the supreme law of the United States of America. It is the framework for the organization of the United States government and for the relationship of the federal government with the states, citizens, and all people within the United States.The first three...

. Traditionally, a marriage was considered valid if the requirements of the marriage law of the state where the marriage took place were fulfilled. (First Restatement of Conflicts on Marriage and Legitimacy s.121 (1934)). However, a state can refuse to recognize a marriage if the marriage violates a strong public policy of the state, even if the marriage was legal in the state where it was performed. (Restatement (Second) Of Conflict of Laws § 283(2) (1971).) States historically exercised this "public policy exception" by refusing to recognize out-of-state polygamous marriages, underage marriages, incestuous marriages, and interracial marriages. Following these precedents, nearly all courts that have addressed the issue have held that states with laws against same-sex marriage can refuse to recognize same-sex marriages that were legally performed elsewhere.

Same-sex marriage is currently legal in the District of Columbia and in six U.S. states: New Hampshire, New York, Massachusetts, Vermont, Iowa and Connecticut. In 2003 and 2008 respectively, the Massachusetts
Massachusetts Supreme Judicial Court
The Massachusetts Supreme Judicial Court is the highest court in the Commonwealth of Massachusetts. The SJC has the distinction of being the oldest continuously functioning appellate court in the Western Hemisphere.-History:...

 and California
Supreme Court of California
The Supreme Court of California is the highest state court in California. It is headquartered in San Francisco and regularly holds sessions in Los Angeles and Sacramento. Its decisions are binding on all other California state courts.-Composition:...

 Supreme courts ruled in Goodridge v. Department of Public Health
Goodridge v. Department of Public Health
Goodridge v. Dept. of Public Health, 798 N.E.2d 941 , was a landmark state appellate court case dealing with same-sex marriage in Massachusetts. The November 18, 2003, decision was the first by a U.S...

and In Re Marriage Cases
In re Marriage Cases
In re Marriage Cases 43 Cal.4th 757 [76 Cal.Rptr.3d 683, 183 P.3d 384], was a California Supreme Court case with the dual holding that "statutes that treat persons differently because of their sexual orientation should be subjected to strict scrutiny" and the existing "California legislative and...

that the states' constitutions required the state to permit same-sex marriage. The Massachusetts decision could be reversed by an amendment to the state constitution; to date, no such amendment has successfully been passed in Massachusetts. On June 2, the California Marriage Protection Act qualified for the 2008 General Election ballot. Voted on by California Nov. 4, 2008, it amended the California Constitution to provide that "Only marriage between a man and a woman is valid or recognized in California." Several other states including Vermont
Civil unions in Vermont
Same-sex marriage in Vermont began on September 1, 2009. Vermont was the first state to introduce civil unions in July 2000, and the first state to introduce same-sex marriage by enacting a statute without being required to do so by a court decision....

, California, New Jersey, Washington
Domestic partnership in Washington
State Registered Domestic Partnerships in Washington were created in the aftermath of the Andersen v. King County decision. Subsequent legislation has made a SRDP the equivalent of marriage under state law.-Beginnings:...

, Illinois and Oregon allow same-sex couples to enter into civil union
Civil union
A civil union, also referred to as a civil partnership, is a legally recognized form of partnership similar to marriage. Beginning with Denmark in 1989, civil unions under one name or another have been established by law in many developed countries in order to provide same-sex couples rights,...

s or domestic partnership
Domestic partnership
A domestic partnership is a legal or personal relationship between two individuals who live together and share a common domestic life but are neither joined by marriage nor a civil union...

s that provide some of the rights and responsibilities of marriage under state law. Thirty states have passed state constitutional amendments defining marriage as being between one man and one woman.

Federal statutes regulating marriage

Although individual U.S. states have the primary regulatory power with regard to marriage, the United States Congress
United States Congress
The United States Congress is the bicameral legislature of the federal government of the United States, consisting of the Senate and the House of Representatives. The Congress meets in the United States Capitol in Washington, D.C....

 has occasionally regulated marriage. The 1862 Morrill Anti-Bigamy Act
Morrill Anti-Bigamy Act
The Morrill Anti-Bigamy Act was a federal enactment of the United States Congress that was signed into law on July 8, 1862 by President Abraham Lincoln...

, 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
Defense of Marriage Act
The Defense of Marriage Act is a United States federal law whereby the federal government defines marriage as a legal union between one man and one woman. Under the law, no U.S. state may be required to recognize as a marriage a same-sex relationship considered a marriage in another state...

 (DOMA), which defines marriage as a legal union of one man and one woman for the purpose of interpreting federal law. Under DOMA, the federal government does not recognize same-sex marriages or civil unions, even if those unions are recognized by state law. For example, members of a same-sex couple legally married in Massachusetts cannot file joint federal income tax returns
Income tax in the United States
In the United States, a tax is imposed on income by the Federal, most states, and many local governments. The income tax is determined by applying a tax rate, which may increase as income increases, to taxable income as defined. Individuals and corporations are directly taxable, and estates and...

 even if they file joint state income tax returns
State income tax
State and local income taxes are imposed in addition to Federal income tax. State income tax is allowed as a deduction in computing Federal income tax, subject to limitations for individuals. Some localities impose an income tax, often based on state income tax calculations. Forty-three states...

.

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
Loving v. Virginia
Loving v. Virginia, , was a landmark civil rights case in which the United States Supreme Court, in a unanimous decision, declared Virginia's anti-miscegenation statute, the "Racial Integrity Act of 1924", unconstitutional, thereby overturning Pace v...

, 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
Romer v. Evans
Romer v. Evans, 517 U.S. 620 , is a landmark United States Supreme Court case dealing with civil rights and state laws. It was the first Supreme Court case to deal with LGBT rights since Bowers v...

.

In 1972, the U.S. Supreme Court
Supreme Court of the United States
The Supreme Court of the United States is the highest court in the United States. It has ultimate appellate jurisdiction over all state and federal courts, and original jurisdiction over a small range of cases...

 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
Baker v. Nelson
Richard John Baker v. Gerald R. Nelson was a case in which the Minnesota Supreme Court ruled that Minnesota law limited marriage to different-sex couples and that this limitation did not violate the United States Constitution...

,
came to the Court through mandatory appellate review (not certiorari
Certiorari
Certiorari is a type of writ seeking judicial review, recognized in U.S., Roman, English, Philippine, and other law. Certiorari is the present passive infinitive of the Latin certiorare...

), the summary dismissal established Baker v. Nelson as a binding precedent.

One federal appellate court
Appellate court
An appellate court, commonly called an appeals court or court of appeals or appeal court , is any court of law that is empowered to hear an appeal of a trial court or other lower tribunal...

 has upheld a state constitutional amendment banning same-sex marriage: the United States Court of Appeals for the Eighth Circuit
United States Court of Appeals for the Eighth Circuit
The United States Court of Appeals for the Eighth Circuit is a federal court with appellate jurisdiction over the district courts in the following districts:* Eastern District of Arkansas* Western District of Arkansas...

 in Citizens for Equal Protection v. Bruning
Citizens for Equal Protection v. Bruning
Citizens for Equal Protection v. Bruning, 455 F.3d 859 , was a federal lawsuit filed in the United States District Court for the District of Nebraska and decided on appeal by the United States Court of Appeals for the Eighth Circuit challenging the federal constitutionality of Nebraska Initiative...

. The Eighth Circuit, citing Baker v. Nelson, affirmed the constitutionality under the 14th Amendment's Equal Protection Clause of Nebraska's constitutional amendment
Nebraska Initiative Measure 416 (2000)
Nebraska Initiative Measure 416 of 2000 is a ballot initiative that amended the Nebraska Constitution to make it unconstitutional for the state to recognize or perform same-sex marriages or civil unions. The referendum was approved by 70% of the voters....

 which defines marriage as between a man and a woman, and states that unions of two people in a same-sex relationship as marriage or similar to marriage shall not be valid or recognized in Nebraska, and reversing a ruling by Judge Joseph F. Bataillon
Joseph F. Bataillon
Joseph F. Bataillon is a United States federal judge.Born in Omaha, Nebraska, Bataillon received a B.A. from Creighton University in 1971 and a J.D. from Creighton University School of Law in 1974. He was a deputy public defender, Douglas County, Nebraska from 1974 to 1980...

 of the United States District Court for the District of Nebraska
United States District Court for the District of Nebraska
The United States District Court for the District of Nebraska is the Federal district court whose jurisdiction is the state of Nebraska. Court offices are in Omaha, Lincoln, and North Platte....

 that a prohibition on same-sex marriage was unconstitutional.

In 2010, the United States District Court for the Northern District of California
United States District Court for the Northern District of California
The United States District Court for the Northern District of California is the federal United States district court whose jurisdiction comprises following counties of California: Alameda, Contra Costa, Del Norte, Humboldt, Lake, Marin, Mendocino, Monterey, Napa, San Benito, San Francisco, San...

 ruled that Proposition 8, passed two years earlier by a slim majority of voters, was unconstitutional. As in Judge Baitaillon's decision about the Nebraska law, Judge Vaughn Walker stated in his ruling that moral opposition to gay marriage is not sufficient reason to make a law valid. Judge Walker ruled the law violated the 14th Amendment's Equal Protection clause, as well as the Due Process clause, and the proponents of proposition 8 appealed to the United States Court of Appeals for the Ninth Circuit
United States Court of Appeals for the Ninth Circuit
The United States Court of Appeals for the Ninth Circuit is a U.S. federal court with appellate jurisdiction over the district courts in the following districts:* District of Alaska* District of Arizona...

, where the appeal is pending.

Legislative history

The Federal Marriage Amendment has been introduced in the United States Congress
United States Congress
The United States Congress is the bicameral legislature of the federal government of the United States, consisting of the Senate and the House of Representatives. The Congress meets in the United States Capitol in Washington, D.C....

 four times: in 2003, 2004, 2005/2006 and 2008.

2002

The original Federal Marriage Amendment, written by the Alliance for Marriage
Alliance for Marriage
The Alliance for Marriage , founded in 1999, is a non-profit organization based in the United States. The organization describes 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 is...

, was first introduced in the 107th United States Congress
107th United States Congress
The One Hundred Seventh United States Congress was a meeting of the legislative branch of the United States federal government, composed of the United States Senate and the United States House of Representatives. It met in Washington, D.C. from January 3, 2001 to January 3, 2003, during the final...

 in the House of Representatives
United States House of Representatives
The United States House of Representatives is one of the two Houses of the United States Congress, the bicameral legislature which also includes the Senate.The composition and powers of the House are established in Article One of the Constitution...

 by Democratic
Democratic Party (United States)
The Democratic Party is one of two major contemporary political parties in the United States, along with the Republican Party. The party's socially liberal and progressive platform is largely considered center-left in the U.S. political spectrum. The party has the lengthiest record of continuous...

 Representative Ronnie Shows
Ronnie Shows
Clifford Ronald "Ronnie" Shows is a former Democratic member of the United States House of Representatives from Mississippi....

 (D-MS) with 22 cosponsors.

2003

The original proposed Federal Marriage Amendment was written by Alliance for Marriage
Alliance for Marriage
The Alliance for Marriage , founded in 1999, is a non-profit organization based in the United States. The organization describes 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 is...

 with the assistance of Judge Robert Bork
Robert Bork
Robert Heron Bork is an American legal scholar who has advocated the judicial philosophy of originalism. Bork formerly served as Solicitor General, Acting Attorney General, and judge for the United States Court of Appeals for the District of Columbia Circuit...

, Professor Robert P. George
Robert P. George
Robert P. George is McCormick Professor of Jurisprudence at Princeton University, where he lectures on constitutional interpretation, civil liberties and philosophy of law. He also serves as the director of the James Madison Program in American Ideals and Institutions...

 of Princeton University
Princeton University
Princeton University is a private research university located in Princeton, New Jersey, United States. The school is one of the eight universities of the Ivy League, and is one of the nine Colonial Colleges founded before the American Revolution....

, and Professor Gerard V. Bradley of Notre Dame Law School
Notre Dame Law School
The Notre Dame Law School, or NDLS, is the professional graduate law program of its parent institution, the University of Notre Dame. Established in 1869, NDLS is the oldest Roman Catholic law school in the United States. NDLS is ranked 22nd among the nation's "Top 100 Law Schools" by U.S. News &...

. It was first introduced in the House of Representatives
United States House of Representatives
The United States House of Representatives is one of the two Houses of the United States Congress, the bicameral legislature which also includes the Senate.The composition and powers of the House are established in Article One of the Constitution...

 by Rep. Marilyn Musgrave
Marilyn Musgrave
Marilyn Neoma Musgrave , American politician, is a former Republican member of the United States House of Representatives who served from 2003 to 2009, representing the 4th District of Colorado....

 (R
Republican Party (United States)
The Republican Party is one of the two major contemporary political parties in the United States, along with the Democratic Party. Founded by anti-slavery expansion activists in 1854, it is often called the GOP . The party's platform generally reflects American conservatism in the U.S...

-Colo.
Colorado
Colorado is a U.S. state that encompasses much of the Rocky Mountains as well as the northeastern portion of the Colorado Plateau and the western edge of the Great Plains...

) on May 21, 2003 and consisted of two sentences.
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. The bill was introduced in the Senate by Senator Wayne Allard
Wayne Allard
Alan Wayne Allard is a member of the Republican Party, and was a United States Senator from Colorado. He did not seek re-election in 2008.-Early life:...

 (R
Republican Party (United States)
The Republican Party is one of the two major contemporary political parties in the United States, along with the Democratic Party. Founded by anti-slavery expansion activists in 1854, it is often called the GOP . The party's platform generally reflects American conservatism in the U.S...

-Colo.
Colorado
Colorado is a U.S. state that encompasses much of the Rocky Mountains as well as the northeastern portion of the Colorado Plateau and the western edge of the Great Plains...

) on November 25, 2003 and designated S.J.Res.26. It was immediately referred to the Senate Committee on the Judiciary
United States Senate Committee on the Judiciary
The United States Senate Committee on the Judiciary is a standing committee of the United States Senate, of the United States Congress. The Judiciary Committee, with 18 members, is charged with conducting hearings prior to the Senate votes on confirmation of federal judges nominated by the...

.

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:
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
Cloture
In parliamentary procedure, cloture is a motion or process aimed at bringing debate to a quick end. It is also called closure or, informally, a guillotine. The cloture procedure originated in the French National Assembly, from which the name is taken. Clôture is French for "ending" or "conclusion"...

 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
Supermajority
A supermajority or a qualified majority is a requirement for a proposal to gain a specified level or type of support which exceeds a simple majority . In some jurisdictions, for example, parliamentary procedure requires that any action that may alter the rights of the minority has a supermajority...

 (three-fifths) needed to end debate and force a vote on the Amendment itself. Senators John Kerry
John Kerry
John Forbes Kerry is the senior United States Senator from Massachusetts, the 10th most senior U.S. Senator and chairman of the Senate Foreign Relations Committee. He was the presidential nominee of the Democratic Party in the 2004 presidential election, but lost to former President George W...

 of Massachusetts
Massachusetts
The Commonwealth of Massachusetts is a state in the New England region of the northeastern United States of America. It is bordered by Rhode Island and Connecticut to the south, New York to the west, and Vermont and New Hampshire to the north; at its east lies the Atlantic Ocean. As of the 2010...

 and John Edwards
John Edwards
Johnny Reid "John" Edwards is an American politician, who served as a U.S. Senator from North Carolina. He was the Democratic nominee for Vice President in 2004, and was a candidate for the Democratic presidential nomination in 2004 and 2008.He defeated incumbent Republican Lauch Faircloth in...

 of North Carolina
North Carolina
North Carolina is a state located in the southeastern United States. The state borders South Carolina and Georgia to the south, Tennessee to the west and Virginia to the north. North Carolina contains 100 counties. Its capital is Raleigh, and its largest city is Charlotte...

 skipped the filibuster vote despite claiming to take a break from campaigning
John Kerry presidential campaign, 2004
The Presidential Campaign of John Kerry, U.S. Senator from Massachusetts and the nominee of the Democratic Party challenged Republican incumbent President George W. Bush in the U.S. presidential election on November 2, 2004. Ultimately, Kerry conceded defeat in the race in a telephone call to Bush...

 to participate. On July 15, 2004, the motion to proceed to consideration of the Amendment was withdrawn in the Senate.

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
United States House Committee on Rules
The Committee on Rules, or Rules Committee, is a committee of the United States House of Representatives. Rather than being responsible for a specific area of policy, as most other committees are, it is in charge of determining under what rule other bills will come to the floor...

 with regards to debate and voting on the proposed Amendment. The rules were passed on September 30. 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
Article Five of the United States Constitution
Article Five of the United States Constitution describes the process whereby the Constitution may be altered. Altering the Constitution consists of proposing an amendment and subsequent ratification....

.

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".

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
United States Senate Judiciary Subcommittee on the Constitution, Civil Rights and Property Rights
The Senate Judiciary Subcommittee on the Constitution is one of seven subcommittees within the Senate Judiciary Committee. The subcomittee was best known in the 1970s as the committee of Sam Ervin, whose investigations and lobbying — together with Frank Church and the Church Commission — lead to...

 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
Cloture
In parliamentary procedure, cloture is a motion or process aimed at bringing debate to a quick end. It is also called closure or, informally, a guillotine. The cloture procedure originated in the French National Assembly, from which the name is taken. Clôture is French for "ending" or "conclusion"...

 motion to force a direct vote on the Marriage Protection Amendment was defeated in the Senate by a margin of 49 nay votes to 48 yea votes, with the vote mostly following party lines with Democrats opposing and Republicans in favor. The 48 votes in support of the cloture motion were 12 votes short of the 60-vote supermajority
Supermajority
A supermajority or a qualified majority is a requirement for a proposal to gain a specified level or type of support which exceeds a simple majority . In some jurisdictions, for example, parliamentary procedure requires that any action that may alter the rights of the minority has a supermajority...

 (three-fifths) needed to end debate and force a vote on the Amendment itself. Eight Republican Senators opposed or did not vote; four Democratic Senators favored or did not vote. The only Senators who changed their position from the 2004 vote to the 2006 vote were Senators Judd Gregg
Judd Gregg
Judd Alan Gregg is a former Governor of New Hampshire and former United States Senator from New Hampshire, who served as chairman of the Senate Budget Committee. He is a member of the Republican Party and was a businessman and attorney in Nashua before entering politics...

 and Arlen Specter
Arlen Specter
Arlen Specter is a former United States Senator from Pennsylvania. Specter is a Democrat, but was a Republican from 1965 until switching to the Democratic Party in 2009...

, both of whom voted Yea in 2004 and Nay in 2006.

The bill was designated H.J.Res.88 in the House and was immediately referred to the House Committee on the Judiciary
United States House Committee on the Judiciary
The U.S. House Committee on the Judiciary, also called the House Judiciary Committee, is a standing committee of the United States House of Representatives. It is charged with overseeing the administration of justice within the federal courts, administrative agencies and Federal law enforcement...

. On July 17, 2006, rules were recommended by the House Rules Committee
United States House Committee on Rules
The Committee on Rules, or Rules Committee, is a committee of the United States House of Representatives. Rather than being responsible for a specific area of policy, as most other committees are, it is in charge of determining under what rule other bills will come to the floor...

 with regards to debate and voting on the proposed Amendment. The rules were passed on July 18. 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. 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.

2008

The Marriage Protection Amendment resurfaced in 2008. On May 22, Rep. Paul Broun
Paul Broun
Paul Collins Broun, Jr. is the U.S. Representative for , serving since 2007. He is a member of the Republican Party and the Tea Party Caucus.-Early life, education and career:...

 (R-Ga.) and 91 co-sponsors introduced H.J.Res.89, a proposition for a such amendment. Senator Roger Wicker
Roger Wicker
Roger Frederick Wicker is the junior U.S. Senator from Mississippi and a member of the Republican Party. In December 2007 he was appointed by Governor Haley Barbour to fill the seat vacated by Trent Lott. He subsequently won the 2008 special election for the remainder of the term. Wicker served...

 (R
Republican Party (United States)
The Republican Party is one of the two major contemporary political parties in the United States, along with the Democratic Party. Founded by anti-slavery expansion activists in 1854, it is often called the GOP . The party's platform generally reflects American conservatism in the U.S...

-MS
Mississippi
Mississippi is a U.S. state located in the Southern United States. Jackson is the state capital and largest city. The name of the state derives from the Mississippi River, which flows along its western boundary, whose name comes from the Ojibwe word misi-ziibi...

) and eight other senators introduced a proposition for the amendment with S.J.Res.43 on June 25.

Bush administration's stance

In 2003, the White House declined to take a stand on the amendment, although Press Secretary Ari Fleischer
Ari Fleischer
On May 19, 2003, he announced that he would resign during the summer, citing a desire to spend more time with his wife and to work in the private sector...

 relayed that President George W. Bush
George W. Bush
George Walker Bush is an American politician who served as the 43rd President of the United States, from 2001 to 2009. Before that, he was the 46th Governor of Texas, having served from 1995 to 2000....

 believed that marriage was between a man and a woman. In 2004, President Bush expressed support for this amendment. Vice President
Vice President of the United States
The Vice President of the United States is the holder of a public office created by the United States Constitution. The Vice President, together with the President of the United States, is indirectly elected by the people, through the Electoral College, to a four-year term...

 Dick Cheney
Dick Cheney
Richard Bruce "Dick" Cheney served as the 46th Vice President of the United States , under George W. Bush....

 neither endorsed nor condemned the FMA, arguing that same-sex marriage is an issue for the states to decide. In 2009, Cheney stated his support for same-sex marriage on a state-by-state basis.

On January 25, 2005, according to the New York Times, Bush told a privately invited group of African-American community
Community
The term community has two distinct meanings:*a group of interacting people, possibly living in close proximity, and often refers to a group that shares some common values, and is attributed with social cohesion within a shared geographical location, generally in social units larger than a household...

 and religious leaders
Religion
Religion is a collection of cultural systems, belief systems, and worldviews that establishes symbols that relate humanity to spirituality and, sometimes, to moral values. Many religions have narratives, symbols, traditions and sacred histories that are intended to give meaning to life or to...

 that he remained committed to amending the Constitution to "ban same-sex marriage". Over the course of the next two days, it was revealed by the Washington Post and USA Today
USA Today
USA Today is a national American daily newspaper published by the Gannett Company. It was founded by Al Neuharth. The newspaper vies with The Wall Street Journal for the position of having the widest circulation of any newspaper in the United States, something it previously held since 2003...

that the Bush Administration had paid columnists to promote its views. The Department of Health and Human Services paid Maggie Gallagher
Maggie Gallagher
Margaret Gallagher Srivastav , better known by her working name Maggie Gallagher, is an American writer, commentator, and opponent of same-sex marriage. She has written a syndicated column for Universal Press Syndicate since 1995, and has published five books...

 $21,500, and Mike McManus
Michael McManus (columnist)
Michael McManus is the author of "Ethics & Religion", a socially conservative but economic liberal syndicated opinion column which appears in several small and mid-range US publications. The column, archives of which are linked below, is shaped much like a 'gathering point' of views; quotes from...

 $49,000, to write syndicated news columns endorsing the FMA. 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.

Influence on 2004 presidential election

By the time Americans went to the polls, John Kerry
John Kerry
John Forbes Kerry is the senior United States Senator from Massachusetts, the 10th most senior U.S. Senator and chairman of the Senate Foreign Relations Committee. He was the presidential nominee of the Democratic Party in the 2004 presidential election, but lost to former President George W...

 opposed the Federal Marriage Amendment and affirmatively supported civil unions, while George W. Bush
George W. Bush
George Walker Bush is an American politician who served as the 43rd President of the United States, from 2001 to 2009. Before that, he was the 46th Governor of Texas, having served from 1995 to 2000....

 supported the Federal Marriage Amendment to ban same sex marriage but was not opposed to states enacting their own civil union legislation.

Previously, on February 24, 2004, Bush called for an amendment which would have outlawed gay marriage, and which would have disallowed states from recognizing or enforcing gay civil unions. Bush's statement included a requirement that any amendment "leav[e] the state legislatures free to make their own choices in defining legal arrangements other than marriage." The White House partly clarified Bush's position in a February 24, 2004 press conference with White House Press Secretary Scott McClellan
Scott McClellan
Scott McClellan is a former White House Press Secretary for President George W. Bush, and author of a controversial No. 1 New York Times bestseller about the Bush Administration titled What Happened. He replaced Ari Fleischer as press secretary in July 2003 and served until May 10, 2006...

, who stated that by calling on the FMA to permit states the possibility of creating other "legal arrangements," Bush specifically meant to permit states the possibility of enacting civil unions. (McClellan also stated, however, that Bush did not personally support civil unions.) Similarly, at the February 25, 2004 press conference, 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.

The FMA's Republican co-sponsors, Senator Wayne Allard
Wayne Allard
Alan Wayne Allard is a member of the Republican Party, and was a United States Senator from Colorado. He did not seek re-election in 2008.-Early life:...

 (R-CO) and Representative Marilyn Musgrave
Marilyn Musgrave
Marilyn Neoma Musgrave , American politician, is a former Republican member of the United States House of Representatives who served from 2003 to 2009, representing the 4th District of Colorado....

 (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."

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
Arizona
Arizona ; is a state located in the southwestern region of the United States. It is also part of the western United States and the mountain west. The capital and largest city is Phoenix...

 and Colorado
Colorado
Colorado is a U.S. state that encompasses much of the Rocky Mountains as well as the northeastern portion of the Colorado Plateau and the western edge of the Great Plains...

 which are normally thought of as socially conservative. They cite Pew Research Center
Pew Research Center
The Pew Research Center is an American think tank organization based in Washington, D.C. that provides information on issues, attitudes and trends shaping the United States and the world. The Center and its projects receive funding from The Pew Charitable Trusts. In 1990, Donald S...

 exit polls from the 2004 elections finding that 25% of polled voters support same-sex marriage and another 35% support civil unions.

On the other hand, of the 11 states in which same-sex marriage amendments were on the ballot, all passed handily. Bush won in nine, including Ohio
Ohio
Ohio is a Midwestern state in the United States. The 34th largest state by area in the U.S.,it is the 7th‑most populous with over 11.5 million residents, containing several major American cities and seven metropolitan areas with populations of 500,000 or more.The state's capital is Columbus...

. 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 barring same-sex marriage.

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
United States presidential election, 2000
The United States presidential election of 2000 was a contest between Republican candidate George W. Bush, then-governor of Texas and son of former president George H. W. Bush , and Democratic candidate Al Gore, then-Vice President....

, there was some speculation that many evangelicals did not go to the polls and vote because of the October surprise
October surprise
In American political jargon, an October surprise is a news event with the potential to influence the outcome of an election, particularly one for the U.S. presidency...

 of George W. Bush's drunk-driving arrest record. In a dozen swing states that decided the presidential election, moral values tied with the economy and jobs as the top issue in the campaign, according to Associated Press exit polls.

Arguments against the Federal Marriage Amendment

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


The first sentence of H.J. Res. 56 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. Civil right activists and supporters of the LGBT (Lesbian, Gay, Bisexual, Transgender) community feel that the Federal Marriage Amendment has no place in our country's constitution.

Federalism

Opponents of the FMA argue that it would violate the states' rights
States' rights
States' rights in U.S. politics refers to political powers reserved for the U.S. state governments rather than the federal government. It is often considered a loaded term because of its use in opposition to federally mandated racial desegregation...

 to regulate marriage by federalizing
Federal government of the United States
The federal government of the United States is the national government of the constitutional republic of fifty states that is the United States of America. The federal government comprises three distinct branches of government: a legislative, an executive and a judiciary. These branches and...

 the issue, which they say should be left to the states. Many have used the federalism argument, including Senator John Kerry
John Kerry
John Forbes Kerry is the senior United States Senator from Massachusetts, the 10th most senior U.S. Senator and chairman of the Senate Foreign Relations Committee. He was the presidential nominee of the Democratic Party in the 2004 presidential election, but lost to former President George W...

, Senator John McCain
John McCain
John Sidney McCain III is the senior United States Senator from Arizona. He was the Republican nominee for president in the 2008 United States election....

, and Representative Ron Paul
Ron Paul
Ronald Ernest "Ron" Paul is an American physician, author and United States Congressman who is seeking to be the Republican Party candidate in the 2012 presidential election. Paul represents Texas's 14th congressional district, which covers an area south and southwest of Houston that includes...

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

Civil rights

Opponents of the FMA say that it would be only the second Constitutional amendment to restrict, rather than expand, the civil rights of individuals in the United States. The first was the 18th Amendment
Eighteenth Amendment to the United States Constitution
The Eighteenth Amendment of the United States Constitution established Prohibition in the United States. The separate Volstead Act set down methods of enforcing the Eighteenth Amendment, and defined which "intoxicating liquors" were prohibited, and which were excluded from prohibition...

 on prohibition
Prohibition
Prohibition of alcohol, often referred to simply as prohibition, is the practice of prohibiting the manufacture, transportation, import, export, sale, and consumption of alcohol and alcoholic beverages. The term can also apply to the periods in the histories of the countries during which the...

, which was later repealed by the 21st Amendment
Twenty-first Amendment to the United States Constitution
The Twenty-first Amendment to the United States Constitution repealed the Eighteenth Amendment to the United States Constitution, which had mandated nationwide Prohibition...

.

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

Unmarried heterosexual couples

It is argued that the 2002 version of the FMA would have severely affected the ability of heterosexual unmarried couples to seek some degree of legal protection and/or provisions.

Opponents of the FMA argue that it may complicate efforts to enforce laws against domestic abuse in heterosexual relationships involving unmarried couples.
They note that two Ohio courts ruled that Ohio's similar amendment made the state's domestic violence laws unconstitutional as applied to unmarried couples, because they created a "quasi-marital relationship". (although the decisions were later reversed). Supporters of the FMA assert that this argument was an invalid scare tactic from the outset and that the FMA would not prevent laws against domestic abuse from being applied to unmarried couples. Even in Ohio, 8 of the 10 Ohio Courts that addressed the effect of the State Amendment on Domestic Violence Laws found no conflict. Additionally several Attorneys General of other states issued legal opinions finding that no such conflict would exist. 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.

The right to privacy

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. 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.

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 claim that life for those in a heterosexual marriage are not materially affected by a constitutional marriage definition or legalization of same-sex marriage. They state that the FMA is totally unnecessary because federal and state laws, combined with the present state of the relevant constitutional doctrines, already make court-ordered nationwide same-sex marriage unlikely for the foreseeable future. It is claimed therefore, that such an amendment is a solution in search of a problem. It is claimed that neither federal nor state courts are likely to order same-sex marriage under the traditional interpretation of the Constitution’s Full Faith and Credit Clause
Full Faith and Credit Clause
The Full Faith and Credit Clause is the familiar name used to refer to Article IV, Section 1 of the United States Constitution, which addresses the duties that states within the United States have to respect the "public acts, records, and judicial proceedings of every other state." According to...

. Nor, for the foreseeable future, are courts likely to mandate same-sex marriage under substantive federal constitutional doctrines, such as the Fourteenth Amendment’s Due Process Clause or the Equal Protection Clause. They state that even if individual states recognize same-sex marriages, while other states refuse to recognize them, there is no reason to believe these discordant approaches will create insurmountable legal or public policy problems. There is no uniform national family law, just as there is no uniform national property law or criminal code. Throughout the nation’s history, states have adopted their own family law policies, including their own requirements for marriage. These divergent policies have not created intolerable levels of confusion or conflict among the states.

Arguments in favor of the Federal Marriage Amendment

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

Restriction of perceived judicial overreach

Proponents of the FMA argue that if it were not for judicial overreach, there would be no need for a FMA; states' rights would not be violated since no state legislatures have recognized same-sex marriage (until Vermont
Vermont
Vermont is a state in the New England region of the northeastern United States of America. The state ranks 43rd in land area, , and 45th in total area. Its population according to the 2010 census, 630,337, is the second smallest in the country, larger only than Wyoming. It is the only New England...

 did so in April 2009). They argue that the federalism proposed by the opponents of a constitutional amendment is a contrivance for permitting federal courts to foist same-sex marriage upon the whole nation, no matter what the people of the individual states desire. In essence they see the FMA largely as a defensive measure that would not be necessary if the judiciary were not acting beyond its perceived scope. Proponents support this claim with Citizens for Equal Protection v. Bruning
Citizens for Equal Protection v. Bruning
Citizens for Equal Protection v. Bruning, 455 F.3d 859 , was a federal lawsuit filed in the United States District Court for the District of Nebraska and decided on appeal by the United States Court of Appeals for the Eighth Circuit challenging the federal constitutionality of Nebraska Initiative...

, 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 argue that this argument is an invalid scare tactic because no federal court has ever ordered a state to permit same-sex marriage.

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. For example, a couple who leaves California for Massachusetts to obtain a valid same-sex marriage may not be granted an equitable divorce in California should they file for divorce there. However, if they were granted a valid divorce in Massachusetts, the state of California would be required to uphold the judgment of the Massachusetts court. Using this scenario, not only would same-sex married couples be treated differently depending on the state, they could also be treated differently in the same state depending upon which state their divorce is obtained. The need for clarification on state uniformity in this issue requires a constitutional amendment at the federal level, particularly considering there will be a floodgate of marriages in out-of-state jurisdictions for purposes of obtaining a same-sex marriage license.

Protection of conjugal marriage

FMA proponents argue that opposite-sex marriage in the United States has been given special legal protection. This protection has historically been granted only to the unique institution of marriage as the cradle for the family and to legitimize lines of inheritance. Proponents of the Federal Marriage Amendment argue that same-sex marriage advocates want to disregard federalism
Federalism
Federalism is a political concept in which a group of members are bound together by covenant with a governing representative head. The term "federalism" is also used to describe a system of the government in which sovereignty is constitutionally divided between a central governing authority and...

 and enact same-sex marriage nationwide via judicial fiat, then the Federal Marriage Amendment is necessary to protect the institution of conjugal marriage by nationally preventing other forms of marriage.

Definition of "gender"

Another issue concerns the definition of "gender" in the proposed amendment. If the amendment prohibits marriage between persons of the same gender, then a question may arise on how to define gender with regard to transgender
Transgender
Transgender is a general term applied to a variety of individuals, behaviors, and groups involving tendencies to vary from culturally conventional gender roles....

 and intersex
Intersex
Intersex, in humans and other animals, is the presence of intermediate or atypical combinations of physical features that usually distinguish female from male...

 persons.

External links

The source of this article is wikipedia, the free encyclopedia.  The text of this article is licensed under the GFDL.
 
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