Federal Marriage Amendment
The Federal Marriage Amendment, also referred to by proponents as the Marriage Protection Amendment, was a proposed amendment to the United States Constitution that would have legally defined marriage as a union of one man and one woman. The FMA would also have prevented judicial extension of marriage rights to same-sex couples.
An amendment to the U.S. Constitution requires the support of two thirds of each house of Congress and ratification by three fourths of the states. The last congressional vote on the proposed amendment occurred in the House of Representatives on July 18, 2006, when the motion failed 236 to 187, falling short of the 290 votes required for passage in that body. The Senate has only voted on cloture motions with regard to the proposed amendment, the last of which was on June 7, 2006, when the motion failed 49 to 48, falling short of the 60 votes required to allow the Senate to proceed to consideration of the proposal and the 67 votes required to send the proposed amendment to the states for ratification. President George W. Bush endorsed this proposal and made it part of his campaign during the 2004 and 2006 election cycles.
Background and current law
Role of states
In the United States, civil marriage is governed by state law. Each state is free to set the conditions for a valid marriage, subject to limits set by the state's own constitution and the U.S. Constitution. Traditionally, a marriage was considered valid if the requirements of the marriage law of the state where the marriage took place were fulfilled.. 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. of Conflict of Laws § 283 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 and California supreme courts ruled in Goodridge v. Department of Public Health and In Re Marriage Cases that the states' constitutions required the state to permit same-sex marriage. The Massachusetts decision could be reversed by an amendment to the state constitution; to date, no such amendment has successfully been passed in Massachusetts. On June 2, the California Marriage Protection Act, commonly referred to as Prop 8 qualified for the 2008 General Election ballot. 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 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, Congress passed the Defense of Marriage Act, section 3 of which defined marriage as a legal union of one man and one woman for the purpose of interpreting federal law. Under DOMA section 3, the federal government did not recognize same-sex marriages, even if those unions were recognized by state law. For example, members of a same-sex couple legally married in Massachusetts could not file joint federal income tax returns even if they filed joint state income tax returns. DOMA section 3 was struck down by the U.S. Supreme Court in United States v. Windsor on June 26, 2013 and repealed by the Respect for Marriage Act on December 13, 2022.The United States Constitution and federal courts
Federal courts have interpreted the U.S. Constitution to place some limits on states' ability to restrict access to marriage. In Loving v. Virginia, the United States Supreme Court overturned state marriage laws that barred interracial marriages on the basis that marriage is a "basic civil right..." and that "...the freedom to marry, or not marry, a person of another race resides with the individual and cannot be infringed by the State." The Supreme Court struck down a 1992 Colorado constitutional amendment that barred legislative and judicial remedies to protect homosexuals from discrimination solely on the basis of their sexual orientation in Romer v. Evans.In 1972, the U.S. Supreme Court dismissed, "for want of a substantial question," an appeal by two men who unsuccessfully challenged Minnesota's marriage statutes in state court. Because the case, Baker v. Nelson, came to the Court through mandatory appellate review, the summary dismissal established Baker v. Nelson as a binding precedent.
In 2010, the United States District Court for the Northern District of California 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 stated in his ruling that moral opposition to same-sex marriage is not sufficient reason to make a law valid. Judge Walker ruled the law violated the 14th Amendment's Equal Protection clause, as well as the Due Process Clause. The proponents of Proposition 8 appealed to the United States Court of Appeals for the Ninth Circuit, which affirmed the lower court's decision on February 7, 2012. 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. 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 multiple 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 under Matthew Daniels with the assistance of former Solicitor General and failed Supreme Court nominee Judge Robert Bork, Professor Robert P. George of Princeton University, and Professor Gerard V. Bradley of Notre Dame Law School. It was introduced in the 107th United States Congress in the House of Representatives on May 15, 2002, by Representative Ronnie Shows with 22 cosponsors, and read:The bill was designated H.J.Res 93 and was immediately referred to the House Committee on the Judiciary. On July 18, 2002, it was referred to the Subcommittee on the Constitution, which took no action on it.
2003
The amendment was introduced again by Rep. Marilyn Musgrave on May 21, 2003, with the same wording proposed in 2002. 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 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 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.
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 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 needed to end debate and force a vote on the Amendment itself. Senators John Kerry of Massachusetts and John Edwards of North Carolina 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. The resolution was immediately considered. Passage of the proposed Amendment failed 227 yea votes to 186 nay votes, where 290 yea votes are required for passage of a proposed Constitutional amendment.