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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 The Constitution of the United States is the supreme law of the United States of America. It superseded the Articles of Confederation, the nation's first constitution, in 1789. Originally comprising seven articles, it delineates the natio ...
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 (gay) or other unmarried homosexual couples. An amendment to the U.S. Constitution requires the support of two thirds of each house of Congress and
ratification Ratification is a principal's approval of an act of its agent that lacked the authority to bind the principal legally. Ratification defines the international act in which a state indicates its consent to be bound to a treaty if the parties inten ...
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. George Bush endorsed this proposal and made it part of his campaign during the 2004 and 2006 election cycles.Scott Dodson, "The Peculiar Federal Marriage Amendment." ''Arizona State Law Journal'' 36 (2004): 783
online


Background and current law


Role of states

In the United States, civil marriage is governed by
state law State law refers to the law of a federated state, as distinguished from the law of the federation A federation (also known as a federal state) is a political entity characterized by a union of partially self-governing provinces, states, o ...
. 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. Same-sex marriage is currently legal in all US States. In 2003 and 2008 respectively, the
Massachusetts Massachusetts (Massachusett: ''Muhsachuweesut Massachusett_writing_systems.html" ;"title="nowiki/> məhswatʃəwiːsət.html" ;"title="Massachusett writing systems">məhswatʃəwiːsət">Massachusett writing systems">məhswatʃəwiːsət'' En ...
and
California California is a state in the Western United States, located along the Pacific Coast. With nearly 39.2million residents across a total area of approximately , it is the most populous U.S. state and the 3rd largest by area. It is also the m ...
supreme courts ruled in ''
Goodridge v. Department of Public Health ''Goodridge v. Dept. of Public Health'', 798 N.E.2d 941 (Mass. 2003), is a landmark Massachusetts Supreme Judicial Court case in which the Court held that the Massachusetts Constitution requires the state to legally recognize same-sex marriage ...
'' 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. 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. 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 The United States Congress is the legislature of the federal government of the United States. It is Bicameralism, bicameral, composed of a lower body, the United States House of Representatives, House of Representatives, and an upper body, ...
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.


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 ''Richard John Baker v. Gerald R. Nelson'', 291 Minn. 310, 191 N.W.2d 185 (1971), was a case in which the Minnesota Supreme Court decided that construing a marriage statute to restrict marriage licenses to persons of the opposite sex "does not ...
,'' came to the Court through mandatory appellate review (not ''
certiorari In law, ''certiorari'' is a court process to seek judicial review of a decision of a lower court or government agency. ''Certiorari'' comes from the name of an English prerogative writ, issued by a superior court to direct that the record of ...
''), the summary dismissal established ''Baker v. Nelson'' as a binding precedent. In 2010, the
United States District Court for the Northern District of California The United States District Court for the Northern District of California (in case citations, N.D. Cal.) is the federal United States district court whose jurisdiction comprises the following counties of California: Alameda, Contra Costa, De ...
ruled 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 Vaughn Richard Walker (born 1944) is an American lawyer who served as a United States district judge of the United States District Court for the Northern District of California from 1989 to 2011. Walker presided over the original trial in ''Holl ...
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 The United States Court of Appeals for the Ninth Circuit (in case citations, 9th Cir.) is the U.S. federal court of appeals that has appellate jurisdiction over the U.S. district courts in the following federal judicial districts: * District ...
, which affirmed the lower court's decision on February 7, 2012. 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.Prop 8: Gay marriages can resume in California, court rules
/ref> 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 The United States Congress is the legislature of the federal government of the United States. It is Bicameralism, bicameral, composed of a lower body, the United States House of Representatives, House of Representatives, and an upper body, ...
many different times: in 2002, 2003, 2004, 2005, 2006, 2008, 2013, and 2015; none of which were successful.


2002

The original proposed Federal Marriage Amendment was written by the
Alliance for 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 State ...
under Matthew Daniels with the assistance of former Solicitor General and failed
Supreme Court A supreme court is the highest court within the hierarchy of courts in most legal jurisdictions. Other descriptions for such courts include court of last resort, apex court, and high (or final) court of appeal. Broadly speaking, the decisions of ...
nominee Judge Robert Bork, Professor
Robert P. George Robert Peter George (born July 10, 1955) is an American legal scholar, political philosopher, and public intellectual who serves as the sixth McCormick Professor of Jurisprudence and Director of the James Madison Program in American Ideals and ...
of
Princeton University Princeton University is a private research university in Princeton, New Jersey. Founded in 1746 in Elizabeth as the College of New Jersey, Princeton is the fourth-oldest institution of higher education in the United States and one of the ...
, and Professor Gerard V. Bradley of
Notre Dame Law School Notre Dame Law School is the professional graduate law school of the University of Notre Dame. Established in 1869, it is the oldest continuously operating Catholic law school in the United States. ND Law is ranked 22nd among the nation's "Top 1 ...
. It was introduced in the
107th United States Congress The 107th 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 ...
in the House of Representatives on May 15, 2002, by Representative Ronnie Shows ( D- Miss.) with 22 cosponsors, and read: The bill was designated H.J.Res 93 and was immediately referred to the
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, a ...
. On July 18, 2002, it was referred to the Subcommittee on the Constitution, which took no action on it.


2003

The amendment was introduced again by Rep.
Marilyn Musgrave Marilyn Neoma Musgrave (née Shuler; born January 27, 1949), 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. Musgrave ser ...
( R- Colo.) on May 21, 2003, with the same wording proposed in 2002.Musgrave, Marilyn, et al. (May 21, 2003
H.J.RES.56 Proposing an amendment to the Constitution of the United States relating to marriage
United States House of Representatives The United States House of Representatives, often referred to as the House of Representatives, the U.S. House, or simply the House, is the lower chamber of the United States Congress, with the Senate being the upper chamber. Together they ...
,
Library of Congress The Library of Congress (LOC) is the research library that officially serves the United States Congress and is the ''de facto'' national library of the United States. It is the oldest federal cultural institution in the country. The libra ...
. Retrieved August 19, 2007.
Wayne, Allard, et al. (November 25, 2003
S.J.RES.26 Proposing an amendment to the Constitution of the United States relating to marriage
United States House of Representatives The United States House of Representatives, often referred to as the House of Representatives, the U.S. House, or simply the House, is the lower chamber of the United States Congress, with the Senate being the upper chamber. Together they ...
,
Library of Congress The Library of Congress (LOC) is the research library that officially serves the United States Congress and is the ''de facto'' national library of the United States. It is the oldest federal cultural institution in the country. The libra ...
. Retrieved August 19, 2007.
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. 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." 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. It was immediately referred to the
Senate Committee on the Judiciary The United States Senate Committee on the Judiciary, informally the Senate Judiciary Committee, is a standing committee of 22 U.S. senators whose role is to oversee the Department of Justice (DOJ), consider executive and judicial nominations, a ...
.


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:Musgrave, Marilyn, et al. (September 23, 2004
H.J.RES.106 Proposing an amendment to the Constitution of the United States relating to marriage
United States House of Representatives The United States House of Representatives, often referred to as the House of Representatives, the U.S. House, or simply the House, is the lower chamber of the United States Congress, with the Senate being the upper chamber. Together they ...
,
Library of Congress The Library of Congress (LOC) is the research library that officially serves the United States Congress and is the ''de facto'' national library of the United States. It is the oldest federal cultural institution in the country. The libra ...
. Accessed August 18, 2007.
Allard, Wayne, et al. (March 22, 2004
S.J.RES.30 Proposing an amendment to the Constitution of the United States relating to marriage
United States Senate The United States Senate is the upper chamber of the United States Congress, with the House of Representatives being the lower chamber. Together they compose the national bicameral legislature of the United States. The composition and po ...
,
Library of Congress The Library of Congress (LOC) is the research library that officially serves the United States Congress and is the ''de facto'' national library of the United States. It is the oldest federal cultural institution in the country. The libra ...
. Accessed August 18, 2007.
Allard, Wayne, et al. (July 7, 2004
S.J.RES.40 Proposing an amendment to the Constitution of the United States relating to marriage
United States Senate The United States Senate is the upper chamber of the United States Congress, with the House of Representatives being the lower chamber. Together they compose the national bicameral legislature of the United States. The composition and po ...
,
Library of Congress The Library of Congress (LOC) is the research library that officially serves the United States Congress and is the ''de facto'' national library of the United States. It is the oldest federal cultural institution in the country. The libra ...
. Accessed September 1, 2007.
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 A filibuster is a political procedure in which one or more members of a legislative body prolong debate on proposed legislation so as to delay or entirely prevent decision. It is sometimes referred to as "talking a bill to death" or "talking out ...
: 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 A supermajority, supra-majority, qualified majority, or special majority is a requirement for a proposal to gain a specified level of support which is greater than the threshold of more than one-half used for a simple majority. Supermajority ru ...
(three-fifths) needed to end debate and force a vote on the Amendment itself. Senators
John Kerry John Forbes Kerry (born December 11, 1943) is an American attorney, politician and diplomat who currently serves as the first United States special presidential envoy for climate. A member of the Forbes family and the Democratic Party, he ...
of
Massachusetts Massachusetts (Massachusett: ''Muhsachuweesut Massachusett_writing_systems.html" ;"title="nowiki/> məhswatʃəwiːsət.html" ;"title="Massachusett writing systems">məhswatʃəwiːsət">Massachusett writing systems">məhswatʃəwiːsət'' En ...
and John Edwards of
North Carolina North Carolina () is a U.S. state, state in the Southeastern United States, Southeastern region of the United States. The state is the List of U.S. states and territories by area, 28th largest and List of states and territories of the United ...
skipped the filibuster vote. On July 15, 2004, the motion to proceed to consideration of the Amendment was withdrawn in the Senate. Six Republicans voted with a majority of Democrats against cloture 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 with regards to debate and voting on the proposed Amendment. The rules were passed on September 30.(September 28, 2004
H.RES.801 Providing for consideration of the joint resolution (H.J. Res. 106)
House Rules Committee.
United States House of Representatives The United States House of Representatives, often referred to as the House of Representatives, the U.S. House, or simply the House, is the lower chamber of the United States Congress, with the Senate being the upper chamber. Together they ...
. Retrieved September 1, 2007.
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 A constitutional amendment is a modification of the constitution of a polity, organization or other type of entity. Amendments are often interwoven into the relevant sections of an existing constitution, directly altering the text. Conversely, ...
.


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".Musgrave, Marilyn, et al. (June 6, 2006
H.J.RES.88 Proposing an amendment to the Constitution of the United States relating to marriage
United States House of Representatives The United States House of Representatives, often referred to as the House of Representatives, the U.S. House, or simply the House, is the lower chamber of the United States Congress, with the Senate being the upper chamber. Together they ...
,
Library of Congress The Library of Congress (LOC) is the research library that officially serves the United States Congress and is the ''de facto'' national library of the United States. It is the oldest federal cultural institution in the country. The libra ...
. Retrieved August 19, 2007.
Allard, Wayne, et al. (January 24, 2005
S.J.RES.1 Proposing an amendment to the Constitution of the United States relating to marriage
United States Senate The United States Senate is the upper chamber of the United States Congress, with the House of Representatives being the lower chamber. Together they compose the national bicameral legislature of the United States. The composition and po ...
,
Library of Congress The Library of Congress (LOC) is the research library that officially serves the United States Congress and is the ''de facto'' national library of the United States. It is the oldest federal cultural institution in the country. The libra ...
. Retrieved August 19, 2007.
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.(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 The United States Senate is the upper chamber of the United States Congress, with the House of Representatives being the lower chamber. Together they compose the national bicameral legislature of the United States. The composition and po ...
. Retrieved August 18, 2007.
The 49 votes in support of the cloture motion were 11 votes short of the 60-vote
supermajority A supermajority, supra-majority, qualified majority, or special majority is a requirement for a proposal to gain a specified level of support which is greater than the threshold of more than one-half used for a simple majority. Supermajority ru ...
(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 (R- N.H.) and Arlen Specter (R- Penn.), 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 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, a ...
. 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.(July 18, 2006
H.RES.918 Providing for consideration of the joint resolution (H.J. Res. 88)
House Rules Committee.
United States House of Representatives The United States House of Representatives, often referred to as the House of Representatives, the U.S. House, or simply the House, is the lower chamber of the United States Congress, with the Senate being the upper chamber. Together they ...
. Retrieved September 1, 2007.
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

On May 22, 2008, Rep. Paul Broun (R-Ga.) and 91 co-sponsors introduced H.J.Res.89, which proposed the enactment of FMA. Senator
Roger Wicker Roger Frederick Wicker (born July 5, 1951) is an American attorney and politician serving as the senior United States senator from Mississippi, in office since 2007. A member of the Republican Party, Wicker previously served as a member of the ...
( R- Miss.) and eight other senators introduced similar legislation with S.J.Res.43 on June 25.


2013

U.S. Representative
Tim Huelskamp Timothy Alan Huelskamp (; born November 11, 1968) is an American politician who was the U.S. representative for from 2011 to 2017. Huelskamp, a member of the Republican Party, was rated the least bipartisan member of the House during the 114th ...
(R-
Kansas Kansas () is a U.S. state, state in the Midwestern United States, Midwestern United States. Its Capital city, capital is Topeka, Kansas, Topeka, and its largest city is Wichita, Kansas, Wichita. Kansas is a landlocked state bordered by Nebras ...
) reintroduced the FMA () 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''. The bill, which had 58 cosponsors, never made it out of committee.


2015

Huelskamp again introduced the Federal Marriage Amendment in 2015, during the
114th Congress The 114th United States Congress was a meeting of the legislative branch of the United States of America federal government, composed of the United States Senate and the United States House of Representatives. It met in Washington, D.C. from Ja ...
, as . The amendment garnered 37 cosponsors, all Republicans. It never made it out of committee.


Political considerations


Bush administration's stance

In 2003, the White House declined to take a stand on the amendment, although Press Secretary
Ari Fleischer Lawrence Ari Fleischer (born October 13, 1960) is an American media consultant and political aide who served as the 23rd White House Press Secretary, for President George W. Bush, from January 2001 to July 2003. As press secretary in the Bush ...
relayed that President George W. Bush believed that marriage was between a man and a woman. In his State of the Union address on January 20, 2004, President Bush alluded to the recent
court decision In law, a judgment, also spelled judgement, is a decision of a court regarding the rights and liabilities of parties in a legal action or proceeding. Judgments also generally provide the court's explanation of why it has chosen to make a particula ...
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." 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. In August,
Vice President A vice president, also director in British English, is an officer in government or business who is below the president (chief executive officer) in rank. It can also refer to executive vice presidents, signifying that the vice president is on ...
Dick Cheney Richard Bruce Cheney ( ; born January 30, 1941) is an American politician and businessman who served as the 46th vice president of the United States from 2001 to 2009 under President George W. Bush. He is currently the oldest living former ...
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 ''The New York Times'' (''the Times'', ''NYT'', or the Gray Lady) is a daily newspaper based in New York City with a worldwide readership reported in 2020 to comprise a declining 840,000 paid print subscribers, and a growing 6 million paid ...
'', Bush told a privately invited group of
African-American African Americans (also referred to as Black Americans and Afro-Americans) are an ethnic group consisting of Americans with partial or total ancestry from sub-Saharan Africa. The term "African American" generally denotes descendants of ensl ...
community A community is a social unit (a group of living things) with commonality such as place, norms, religion, values, customs, or identity. Communities may share a sense of place situated in a given geographical area (e.g. a country, village, t ...
and religious leaders 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'' (stylized in all uppercase) is an American daily middle-market newspaper and news broadcasting company. Founded by Al Neuharth on September 15, 1982, the newspaper operates from Gannett's corporate headquarters in Tysons, Virgini ...
'' that the Bush Administration had paid columnists to promote its views. The Department of Health and Human Services paid
Maggie Gallagher Margaret Gallagher (born September 14, 1960) is an American writer, socially conservative commentator, and activist. She wrote a syndicated column for Universal Press Syndicate from 1995 to 2013 and has written several books. Gallagher founde ...
$21,500, and Mike McManus $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 Forbes Kerry (born December 11, 1943) is an American attorney, politician and diplomat who currently serves as the first United States special presidential envoy for climate. A member of the Forbes family and the Democratic Party, he ...
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. 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 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, 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, 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 (R-CO) and Representative
Marilyn Musgrave Marilyn Neoma Musgrave (née Shuler; born January 27, 1949), 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. Musgrave ser ...
(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 ( ; nv, Hoozdo Hahoodzo ; ood, Alĭ ṣonak ) is a state in the Southwestern United States. It is the 6th largest and the 14th most populous of the 50 states. Its capital and largest city is Phoenix. Arizona is part of the Fou ...
and
Colorado Colorado (, other variants) is a state in the Mountain West subregion of the Western United States. It encompasses most of the Southern Rocky Mountains, as well as the northeastern portion of the Colorado Plateau and the western edge of the ...
which are normally thought of as socially conservative. They cite
Pew Research Center The Pew Research Center is a nonpartisan American think tank (referring to itself as a "fact tank") based in Washington, D.C. It provides information on social issues, public opinion, and demographic trends shaping the United States and th ...
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 amendments defining marriage were on the ballot, all passed handily. Bush won in nine, including
Ohio Ohio () is a U.S. state, state in the Midwestern United States, Midwestern region of the United States. Of the List of states and territories of the United States, fifty U.S. states, it is the List of U.S. states and territories by area, 34th-l ...
. 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 In U.S. political jargon, an October surprise is a news event that may influence the outcome of an upcoming November election (particularly one for the U.S. presidency), whether deliberately planned or spontaneously occurring. Because the dat ...
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 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 Federal Marriage Amendment discriminates against the LGBT (Lesbian, Gay, Bisexual, Transgender) community.


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 John Forbes Kerry (born December 11, 1943) is an American attorney, politician and diplomat who currently serves as the first United States special presidential envoy for climate. A member of the Forbes family and the Democratic Party, he ...
, Senator
John McCain John Sidney McCain III (August 29, 1936 – August 25, 2018) was an American politician and United States Navy officer who served as a United States senator from Arizona from 1987 until his death in 2018. He previously served two te ...
, and Representative
Ron Paul Ronald Ernest Paul (born August 20, 1935) is an American author, activist, physician and retired politician who served as the U.S. representative for Texas's 22nd congressional district from 1976 to 1977 and again from 1979 to 1985, as we ...
, 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." 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. 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". (The decisions were later reversed). 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.McDonnell, Robert F. (September 14, 2006
"Virginia Attorney General Legal Opinion on effect of State Marriage Amendment"
Commonwealth of Virginia, Office of the Attorney General. Retrieved August 18, 2007.
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.


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 Article IV, Section 1 of the United States Constitution, the Full Faith and Credit Clause, addresses the duty that states within the United States have to respect the "public acts, records, and judicial proceedings of every other state." Acco ...
. 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:


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 Federalism is a combined or compound mode of government that combines a general government (the central or "federal" government) with regional governments ( provincial, state, cantonal, territorial, or other sub-unit governments) in a single ...
and use the judicial system to make same-sex marriage legal nationwide, and that only the Federal Marriage Amendment could forestall that. 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 Vermont () is a U.S. state, state in the northeast New England region of the United States. Vermont is bordered by the states of Massachusetts to the south, New Hampshire to the east, and New York (state), New York to the west, and the Provin ...
,
New Hampshire New Hampshire is a U.S. state, state in the New England region of the northeastern United States. It is bordered by Massachusetts to the south, Vermont to the west, Maine and the Gulf of Maine to the east, and the Canadian province of Quebec t ...
,
New York New York most commonly refers to: * New York City, the most populous city in the United States, located in the state of New York * New York (state), a state in the northeastern United States New York may also refer to: Film and television * '' ...
), and through popular vote (
Maine Maine () is a state in the New England and Northeastern regions of the United States. It borders New Hampshire to the west, the Gulf of Maine to the southeast, and the Canadian provinces of New Brunswick and Quebec to the northeast and nor ...
,
Maryland Maryland ( ) is a state in the Mid-Atlantic region of the United States. It shares borders with Virginia, West Virginia, and the District of Columbia to its south and west; Pennsylvania to its north; and Delaware and the Atlantic Ocean t ...
,
Washington Washington commonly refers to: * Washington (state), United States * Washington, D.C., the capital of the United States ** A metonym for the federal government of the United States ** Washington metropolitan area, the metropolitan area centered o ...
). 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.


Uniform application of Full Faith and Credit

Under the
Full Faith and Credit Clause Article IV, Section 1 of the United States Constitution, the Full Faith and Credit Clause, addresses the duty that states within the United States have to respect the "public acts, records, and judicial proceedings of every other state." Acco ...
, 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.


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 Parenting or child rearing promotes and supports the physical fitness, physical, emotional, Social change, social, spiritual and intellectual development of a child from infant, infancy to adulthood. Parenting refers to the intricacies of raisi ...
, and to legitimize lines of inheritance.


Legislative activity


Federal level


Article V convention initiated by state legislatures

On April 2, 2014, the
Alabama House of Representatives The Alabama State House of Representatives is the lower house of the Alabama Legislature, the state legislature of state of Alabama. The House is composed of 105 members representing an equal number of districts, with each constituency contai ...
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.


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 Same-sex marriage, also known as gay marriage, is the marriage of two people of the same sex or gender. marriage between same-sex couples is legally performed and recognized in 33 countries, with the most recent being Mexico, constituting ...
. A
Gallup Gallup may refer to: * Gallup, Inc., a firm founded by George Gallup, well known for its opinion poll * Gallup (surname), a surname *Gallup, New Mexico, a city in New Mexico, United States ** Gallup station, an Amtrak train in downtown Gallup, New ...
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. 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. 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." 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. 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. An ABC News poll that year found that 42% of Americans supported amending the U.S. Constitution, banning same-sex marriage. 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.


State polling

Public opinion varies widely between different states. Only 2 states,
Mississippi Mississippi () is a state in the Southeastern region of the United States, bordered to the north by Tennessee; to the east by Alabama; to the south by the Gulf of Mexico; to the southwest by Louisiana; and to the northwest by Arkansas. Miss ...
and
Alabama (We dare defend our rights) , anthem = " Alabama" , image_map = Alabama in United States.svg , seat = Montgomery , LargestCity = Huntsville , LargestCounty = Baldwin County , LargestMetro = Greater Birmingham , area_total_km2 = 135,7 ...
, 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. In
Louisiana Louisiana , group=pronunciation (French: ''La Louisiane'') is a state in the Deep South and South Central regions of the United States. It is the 20th-smallest by area and the 25th most populous of the 50 U.S. states. Louisiana is bord ...
,
Tennessee Tennessee ( , ), officially the State of Tennessee, is a landlocked U.S. state, state in the Southeastern United States, Southeastern region of the United States. Tennessee is the List of U.S. states and territories by area, 36th-largest by ...
,
North Carolina North Carolina () is a U.S. state, state in the Southeastern United States, Southeastern region of the United States. The state is the List of U.S. states and territories by area, 28th largest and List of states and territories of the United ...
, and
West Virginia West Virginia is a state in the Appalachian, Mid-Atlantic and Southeastern regions of the United States.The Census Bureau and the Association of American Geographers classify West Virginia as part of the Southern United States while the ...
, 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 Vermont () is a U.S. state, state in the northeast New England region of the United States. Vermont is bordered by the states of Massachusetts to the south, New Hampshire to the east, and New York (state), New York to the west, and the Provin ...
and
Massachusetts Massachusetts (Massachusett: ''Muhsachuweesut Massachusett_writing_systems.html" ;"title="nowiki/> məhswatʃəwiːsət.html" ;"title="Massachusett writing systems">məhswatʃəwiːsət">Massachusett writing systems">məhswatʃəwiːsət'' En ...
. With 48 states more in favor of same sex marriage than opposed, and 44 with absolute majorities in favor, this amendment is very unlikely to ever pass.


References


External links


Federal Marriage Amendment
, considered by the 108th Congress
Federal Marriage Amendment
, considered by the 109th Congress

USAToday.com.
Federal Marriage Amendment (The Musgrave Amendment)
Hearing before the Judiciary Subcommittee on the Constitution. United States House of Representatives. 108th Congress, 2nd Session. May 13, 2004.
An Examination of the Constitutional Amendment on Marriage
Hearing before the Judiciary Subcommittee on the Constitution, Civil Rights and Property Rights. United States Senate. 109th Congress, 1st Session. October 20, 2005. * –
National Conference of State Legislatures The National Conference of State Legislatures (NCSL), established in 1975, is a "nonpartisan public officials’ association composed of sitting state legislators" from the states, territories and commonwealths of the United States. Background ...
{{authority control Same-sex union legislation in the United States Proposed amendments to the United States Constitution Conservatism in the United States Opposition to same-sex marriage United States proposed federal LGBT legislation