Federal Marriage Amendment Federal And State Government

Civil marriage, as a legally protected social institution, has thus far been defined by state law in accord with the principles of federalism. As with other issues, the state is free to set limits to the circumstances in which marriage may be permitted, and judicial interpretation thereof. It also defines how local governments may interpret the law, and the process by which local governments can instigate a review of the case in question. After the city of San Francisco, California began to license same-sex marriages in February 2004, a wave of activism on both sides of the issue erupted.

2 Campaign Issue

There is much debate about the degree to which the Federal Marriage Amendment influenced the 2004 U.S. Presidential Election. While some fail to see a connection, others are more critical.

Ultimately, both candidates had generally similar positions on the issue: opposing Gay Marriage, supporting Civil Unions , and allowing more state control. In spite of Bush's position on state rights, Bush supported the Federal Marriage Amendment that would limit their control. Kerry opposed it and altogether opted to downplay the issue, while George W. BushGeorge Walker Bush (born July 6, 1946) is the 43rd and current President of the United States. His first four-year term as President began on January 20, 2001 following the controversial U. presidential election, 2000, where for the first time in American trumpeted his stance. Most likely, this is because of John Kerry's indirect association with Same-sex marriage in MassachusettsSame-sex marriage in the U. state of Massachusetts became legal on May 17, 2004. The first applications for marriage licenses for same-sex couples were issued at the Cambridge City Hall. Gay couples formed long lines in anticipation, some of whom waited o.

In the polls, Bush's message and confidence definitely resonated with many more voters. However, there is no way of knowing how many people voted based on same-sex marriage, Polling of the public has shown a cautious response to the amendment, with many polls indicating opposition, even in states such as ArizonaArizona was the 48th state admitted to the United States and is part of the Southwest United States. It is one of the Four Corners states, south and east of the Colorado River, bordering New Mexico, Utah, Nevada, California and Mexico. Its major cities ar and ColoradoThere are also three Colorado Rivers: two in the United States and one in Argentina. Colorado is a state in the western United States. The name of Colorado came from the Spanish word "colorado" which means "reddish color". The name comes from the Colorado which are normally thought of as conservative. Exit polls from the 2004 elections showed 25% of voters supporting same-sex marriage and another 35% supporting civil unions, which brings into question how many in the public would want a federal amendment that bans both marriage and civil unions. 12% of Bush voters supported same-sex marriage and over 50% supported civil unions, again suggesting that the party's voter base has a far more undefined position on this issue than is often perceived.

On the other hand, of the 11 states where same-sex marriage amendments were on the ballot, Bush won in nine, including Ohio. Interpretation of some exit polling suggests that the amendments brought out one million additional voters, most of which came out for the first time to cast their ballots for Bush. [1] Yet, a vast majority of these states have not voted for a Democrat in many years. Two examples, such as OregonOregon is a state located in the western United States bordering the Pacific Ocean, California, Washington, Idaho, and Nevada. Its northern border lies along the Columbia River and the east along the Snake River. Two north-south mountain ranges the Coasta and MichiganMichigan is a state in the United States. The name is derived from Lake Michigan, which in turn is believed to come from the Chippewa Indian word meicigama meaning "great water. Bounded by four of the Great Lakes, Michigan has the longest state shoreline, went for Kerry with the Oregon margin of victory being much larger than Al GoreAlbert Arnold Gore Jr. born March 31, 1948) is an American Democratic politician who served as the forty-fifth Vice President of the United States from 1993 to 2001. He ran for President in 2000 following Bill Clinton's two four-year terms, but was defeat's narrow 2000This page is about the year 2000. See 2000 AD for the UK comic book, Number 2000 for other uses. 2000 is a leap year starting on Saturday (see link for calendar), and also the International Year for a Culture of Peace''. Events Y2K passes without the seri win. Kerry also had a stronger finish in Ohio than Al Gore, with Bush defeating Kerry by a slimmer margin in spite of the amendment-- An amendment that brought the Ohio's Governor and 2 US Senators out in opposition.

"Christian evangelicals made the major difference once again this year," said Roberta Combs, the President of the Christian Coalition of America. In the 2000 Presidential Election, there was some speculation that many evangelicals did not go to the polls and vote because of the October surprise of George W. Bush's DWI 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. [2] The definition of the term "Moral Values" is also open to speculation.

Many people insist that the popularity of moral issues in the election was a consequence of voter affirmation for Bush policies. Additionally they claim that so-called moral issues are the clumping of topics that by default appeal to the GOP's base of voters, especially with positions on the War on Terrorism. According to a Pace University Poll, most voters who voted with moral issues as a principle concern were happy with the state of the economy, and early deciders in the Presidential race for Bush. Only 9%, about 2 million voters, were newly registered and conceivably some did vote for Kerry.

Others contest that moral issues caused Bush's victory. They point to the fact that most Americans are progressive about acknowledging equal rights to same-sex couples, but yet the way the Federal Marriage Amendment was introduced, specifically how it forced a dichotomy on the issue, benefited the GOP.

3 Proposed amendment

The amendment originally proposed by Rep. Marilyn Musgrave consists of two clauses (as discussed below, Ms. Musgrave has now introduced a new version substantially modifying the second sentence):

Marriage in the United States shall consist only of the union of a man and a woman.
Neither this constitution or the constitution of any state, nor state or federal law, shall be construed to require that marital status or the legal incidents thereof be conferred upon unmarried couples or groups.

The first sentence would provide an official definition of legal marriage in the United States. Proponents claim that this is a reasonable measure, based on established custom, which defends the family and the institution of marriage. To others, it is an unfair means of excluding same-sex couples from receiving benefits from that institution.

The second sentence goes further by restricting how the courts are allowed to interpret federal and state anti- discrimination laws and constitutional amendments with regard to equal protection of non-married couples, regardless of sexual orientation. State laws would include local city and county ordinances, codes and regulations.

It has been generally accepted that the FMA as originally proposed would bar state courts from requiring local governments to allow same-sex partners marriage or domestic partnership, or civil union status ("the legal incidents thereof"). This might prohibit any court from ordering that equal civil rights be granted among homosexual couples, such as these spousal exemptions and benefits:

Joint parenting, adoption; custody, and child visitation rights
Next-of-kin "status" for hospital visitation and medical decisions
Joint insurance policies
Separation and divorce protections
Immigration and residency exemptions/benefits
Tax benefits
Legal benefits
Veteran’s benefits
Inheritance benefits
Joint filing of official documents (tax returns, customs claims, etc.)
Death benefits
Crime victim recovery benefits
Tort benefits
Domestic violence relief (restraining and protection orders)
Judicial protection, including immunity from testifying against one's partner

It is unclear as to what effect it would have on the enforceability of state or local domestic partner or civil union laws. Some supporters of the amendment claim that it does not prevent state or local governments from passing civil union or domestic partnership laws but some legal experts suggest that is not entirely true. These legal experts claim that the second sentence of the amendment would probably in effect prohibit civil unions, domestic partnerships, and other laws granting legal incidents of marriage by making such laws unenforceable in courts.

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

Finally, a new amendment has been proposed that substantially modifies the second sentence. H.J. Res. 106 (108th Congress 2004) and S.J. Res. 40 (108th Congress 2004) each provide:

Marriage in the United States shall consist only of the union of a man and a woman. Neither this Constitution, nor the constitution of any State, shall be construed to require that marriage or the legal incidents thereof be conferred upon any union other than the union of a man and a woman.

Because the second sentence no longer refers to "state or federal law," the Amendment presumably now allows state and/or federal legislators or voters to enact legislation recognising civil unions or other "legal incidents" of marriage.

4 Proponent arguments

The proposal is a reaction to concerns about the constitutionality of the Defense of Marriage Act (DOMA), a federal law signed by Bill Clinton in 1996, which has a similar definition of marriage. It also granted states the right to refuse to recognize same-sex marriages performed in other states. Concerns about DOMA are that it conflicts with the Constitution's full faith and credit clause. That clause requires all states to recognize the "acts, records and proceedings" of other states. This is the reason marriages and other legal contracts agreed upon in one state are recognized nationally.

Proponents claim that marriage is a union between a man and a woman, not a civil rights issue, and preserve the current authority of state legislatures over all questions of benefits.¹ FMA is intended to provide a constitutional reaffirmation of opposite-sex marriage, and supporters hope that passage of the amendment will absolve communities and corporations from any obligation to accord marital rights to same-sex or unmarried opposite-sex unions. Many feel that judges have overstepped the limits of their office to overturn legitimate (i.e. voted upon) laws, and that the FMA is necessary for that reason.

Some supporters believe that the federal government should protect heterosexual marriage. They assert that extending marriage rights to homosexual or unmarried heterosexual couples would be legislating morality and in violation of cultural tradition.

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

There are, additionally, concerns about abuse of the full faith and credit clause to force a law from one state onto another state, effectively circumventing lawmakers and voters in the target state and diminishing a state's power to create law. This principle could be applied to divorce and family law, business contracts and incorporated businesses.

Churches have concerns that legalization of same-sex marriage could lead to lawsuits against persons, churches or businesses who refuse to perform a marriage ceremony on religious or moral grounds.

5 Opponent arguments

5.1 Gay rights

Gay rights advocates oppose the amendment, calling it discriminatory. They state that same-sex marriage is necessary in order to give gays the privileges which marriage grants (see the partial list above), and that creating a special "civil union" status for them would be merely setting up a " separate but equal" situation.

Supporters of gay rights have had success with both local ordinances and court decisions; the second sentence of the FMA would remove the latter option. Additionally, even the legislative path for advocates of domestic partnership has partially relied on constutitional arguments to convince legislators and the public.

Lambda Legal Defense, a gay rights legal advocacy group, said that the campaign for the FMA was "designed to further anti-gay bigotry". They add that, if passed, it would be only the second Constitional amendment to restrict, rather than expand, the civil rights of individuals in the United States. (The first was the 18th Amendment on prohibition, which was later repealed by the 21st Amendment, though some people consider some other amendments such as the 16th and the 22nd to be restrictions on civil rights as well.) Advocates such as San Francisco mayor Gavin Newsom, whose city has been marrying gay couples in defiance of California statute, have echoed this argument.

Some opponents of the FMA point out that allowing same-sex couples to marry does not prevent opposite-sex couples from doing so, that other countries have allowed same-sex marriage, and that the United Nations recognizes marriage as a fundamental human right. They hold that the FMA exists to pander to the religious right and curry political favor; rather than providing any "protection" to heterosexual married couples or the institution of marriage, it instead would be writing discrimination into the Constitution.

5.2 Heterosexual unmarried couples

With reference to the above discussion of the text of the proposal, it is argued that the FMA would have severely affected the legal rights of heterosexual unmarried couples as well. Some heterosexual couples, for various reasons, choose not to marry, yet are in stable relationships. Such couples may nevertheless seek some degree of legal protection and/or provisions. Arguably, the FMA would have severely curtailed any such attempts.

5.3 States' rights

Another opposing force are states' rights advocates, who oppose a law that would federalize marriage, which since the founding of the country, has traditionally been under the purview of the individual states.

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

5.4 Separation of Church and State

Some liberal religious groups, and others concerned with the separation of governmental regulation from imposing specific viewpoints oppose the amendment. They argue that having the government decide whether a same-sex marriage should be legally binding on the grounds of the ideology of other religious groups restricts their religious freedom and combines powers that the United States kept intentionally separate when it was founded. They hold that not only is the FMA attempting to legislate "morality", but it attempts to legislate one specific point which many people and religious groups oppose. Where same-sex marriage is recognized in the United States, no church or other religious institution is forced to perform same-sex marriages, but the FMA would deny both the secular rights granted by marriage and the opportunity for religions which condone same-sex marriage to perform legally binding same-sex marriages.

6 Process

Before it could become part of the Constitution, the FMA would need to be approved by a two-thirds majority in the United States House of Representatives and the Senate, and then ratified by 38 (three-fourths) of the state legislatures. The FMA was introduced in the House on May 15, 2002, and again on May 21, 2003, by Representative Marilyn Musgrave ( R- Colorado). Three-fourths of states already have enacted laws in accord with the similarly-worded Defense of Marriage Act, but these laws do not constitute ratification of the FMA. President George W. Bush announced his support for a similar amendment on February 24, 2004. The chief sponsor of the amendment in the Senate is Wayne Allard ( R- Colorado).

Although the FMA was widely seen as not having the two-thirds vote necessary to pass either House of Congress, its introduction was seen as a effort by the Republican Party to create a campaign issue that would help George W. Bush in his election campaign against John Kerry and John Edwards by portraying the issue as an example of what the Bush campaign calls mainstream values.

To prevent this, the counter-strategy of the Democratic Party involved avoiding a direct vote on the amendment and avoiding Kerry and Edwards having to directly take a stand on the issue. Thus the bill was subject to a filibuster. A cloture motion to force a direct vote on the FMA was defeated in the Senate on July 14, 2004 by a wider-than-expected margin of 50 nay votes to 48 yea votes. The two missing votes were those of John Kerry and John Edwards, who decided the vote was sure to fail even without them present to vote against it, and chose to remain on the Presidential campaign trail and avoid creating a campaign issue for Bush. The 48 votes in support of the cloture motion were 12 votes short of the 60-vote (three-fifths) supermajority needed to end debate and force a vote on the amendment itself. They were 19 votes short of the 67-vote (two-thirds) supermajority needed to pass the amendment in the Senate. A number of Republicans joined Democrats in voting against the FMA, citing concerns about its wording and the principle of extending federal power into an area of policy traditionally managed by states. The FMA's supporters have said that they will reintroduce it at a later stage.

Despite the amendment's failure in the Senate, the House of Representatives took it up on September 30, 2004. It received 227 yea votes and 186 nay votes, well short of the 290 yea votes needed for adoption.

7 See also

8 References

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

9 External links

Anti-gay rights legislation U.S. Constitution unratified amendments U.S. history of LGBT rights

<Hide>

Home > Federal Marriage Amendment

1 Federal and state government