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The Truth About the Anti-Family Federal Marriage Amendment
The Truth About the Anti-Family Federal Marriage Amendment
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DOMA is the law of the land. The marriage amendment is a misguided solution in search of a problem. The 1996 Defense of Marriage Act specifically states,
"No State, territory, or possession of the United States, or Indian tribe, shall be required to give effect to any public act, record, or judicial proceeding of any other State, territory, possession, or tribe respecting a relationship between persons of the same sex that is treated as a marriage under the laws of such other state, territory, possession, or tribe, or a right or claim arising from such relationship."
The federal Defense of Marriage Act is the law of the land and no court in any jurisdiction, at any time, in any case, has ruled otherwise. The radical right claims DOMA is dead in the water, but the reality is that no court in any state at any time has ever ruled that DOMA is unconstitutional. In fact, Bruce Fein, a constitutional scholar opposed to same-sex marriage, in testimony before the House in 2004, stated "[i]n sum, DOMA is constitutionally irreproachable."
James Madison wrote in Federalist 49 that the Constitution should be amended only on, "great and extraordinary occasions." Our Constitution should never be amended solely on the basis of unfounded fears about what some unknown judge might rule in some unknown case at some unknown time.
The FMA is overly broad. The FMA is overly broad and seeks to outlaw not only same-sex marriages, but also civil unions and possibly even domestic partner benefits. Contrary to what amendment backers are saying, the language is clear in the amendment.
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.
The language makes it clear that civil unions created through the Constitutional process will not be permitted. Additionally, other civil union legislation and even domestic partner benefits may be threatened. The amendment's drafters do not support civil unions and are not going to support any legislation that does. It is a classic Trojan horse. As a party that believes that America is too litigious, this language will lead to a glut of lawsuits by individuals and groups that will challenge any benefits granted to same-sex couples by voters or legislators.
As reported in the Washington Post, two of the amendment's principal authors, Professors Robert George of Princeton and Gerard Bradley of Notre Dame Law School, have made it clear that future courts would have to "interpret the amendment to protect not just the word 'marriage,' but also its essential meaning -- in the same way that, if the Constitution forbade states from creating 'navies,' they clearly could not establish 'flotillas' or 'armadas,' either."
The Washington Post also reported that "[i]n an interview George contended that marriage, at its legal core, is a 'sexual union,' and that the amendment would bar states from extending the legal benefits of marriage to gay couples, or anyone else, 'based on the presumption that they have a sexual relationship outside of marriage.'"
Finally, Congresswoman Musgrave herself has, in written testimony submitted to the House Subcommittee on the Constitution in 2004, stated that the "legal incidents" of marriage, "means the rights, benefits, protections, privileges and responsibilities that have been historically provided by law. There are hundreds of legal incidents of marriage, and it is impossible to set forth a definitive list."
This amendment tramples on the principles of federalism and is an unprecedented incursion into state affairs. Two hundred and twenty-five years of history show that the recognition and protection of families is an issue best handled by the states. Members of the Republican Party have consistently advocated the importance of state and local governance. Rightly so, the GOP has railed against federal mandates and requirements. Now some in the party want to throw federalism out the window.
During the 2000 Vice-Presidential debate, Dick Cheney responded to a question about how same sex relationships should be recognized by government, "[i]t's really no one else's business in terms of trying to regulate or prohibit behavior in that regard...I think different states are likely to come to different conclusions, and that's appropriate. I don't think there necessarily should be a federal policy in this area."
During the 2004 elections, Vice President Cheney re-affirmed his opposition to any anti-family Constitutional amendment, "The question that comes up with respect to the issue of marriage is what kind of official sanction, or approval is going to be granted by government...Historically, that's been a relationship that has been handled by the states. I made clear four years ago...that my view was that that's appropriately a matter for the states to decide, that that's how it ought to best be handled."
Former Congressman Bob Barr (R-GA), author of the 1996 Defense of Marriage Act, stated in testimony before the Senate, "marriage is a quintessential state issue. For the purposes of federal laws and benefits, a measure like DOMA is certainly needed. However, individual states should be given an appropriate amount of wiggle room to ensure that their laws on non-federal issues comport with their values. The Federal Marriage Amendment is at fundamental cross-purposes with such an idea in that, simply put, it takes a power away from the states that they have historically enjoyed."
Congressman Barr further stated that, "In the best conservative tradition, each state should make its own decision without interference from Washington. If this produces different results in different states, I say hurray for our magnificent system of having discrete states with differing social values. This unique system has given rise to a wonderfully diverse set of communities that, bound together by limited, common federal interests, has produced the strongest nation in human history."
The Full Faith and Credit Clause does not necessarily extend to same-sex marriage. Proponents of FMA have been trying to gain support for this amendment by saying the Constitution's Full Faith and Credit Clause will force states to recognize marriages performed in other states. The fact is, no matter what happens in Massachusetts, other states will not be forced to recognize same-sex marriages under the law as it stands today. The United States Supreme Court has specifically recognized a public policy exception to the Full Faith and Credit Clause. Constitutional law expert Bruce Fein wrote in the Washington Times (9/9/03), "Under the Full Faith and Credit Clause, as interpreted by the Supreme Court in Sun Oil Company v. Wortman (1988) and Pacific Employers Ins. Co. v. Industrial Accident Commission (1939), no state would be compelled to recognize same-sex marriages authorized by a sister state." The drafters of the Defense of Marriage Act specifically recognized this exception and drafted the Defense of Marriage Act to fit within this exception. No court in any jurisdiction, at any time, in any case, has ruled otherwise.
No amendment to the Constitution has ever been used to discriminate against or marginalize any category of citizens. Our sacred Constitution must be defended. This would mark the first time a Constitutional amendment has been used to discriminate against a segment of the American population. Whether it is abolishing slavery, giving citizenship to freed slaves, allowing women and young people the right to vote, or limiting the scope of government, amendments most often have been used to spread the benefits of liberty to a larger segment of the population. This proposal would be the first time a Constitutional amendment has targeted a segment of the American population for exclusion and discrimination.
The Constitution should never be used as a political tool for divisive social engineering. The Constitution should not be used as a means of deciding important debates about public policy issues. The Constitution should not be used as a way to gauge public opinion trends on contentious issues. Should we alter the Constitution every time public opinion changes? Such an approach did not work 80 years ago with prohibition, and it would not work here either. "Amending the Constitution to define marriage as between a man and a woman would be unwise." Constitutionalizing social policy is generally a misuse of fundamental law." - George Will, Syndicated Column, November 23, 2003.
Chuck Muth, former Executive Director of the American Conservative Union, has written, "[t]he Constitution was never intended to serve as a tool of social engineering. If conservatives thought it was wrong to use a Constitutional amendment to codify equal rights for my mom, my sisters, my wife and my daughters, why is it now OK to tinker with it to define marriage?"
Congressman Ron Paul (R-TX) says, "Social problems cannot be solved by constitutional amendments or government edicts. Nationalizing marriage laws will only grant more power over our lives to the federal government, even if for supposedly conservative ends. Throughout the 20th century, the relentless federalization of state law served the interests of the cultural left, and we should not kid ourselves that the same practice now can save freedom and morality. True conservatives and libertarians should understand that the solution to our moral and cultural decline does not lie in a strong centralized government."
FMA eliminates the will of future majorities. Proponents of FMA are trying to use the United States Constitution to constrain the will of future majorities. FMA sponsors often speak about wanting to allow the people to decide the marriage issue, instead of "activist judges." This amendment, however, prevents the will of future generations from deciding this issue through the democratic process. Proponents of FMA do not want the democratic process to decide this issue in 20 years because they will disagree with the outcome in many states. For example, earlier this year, both houses of California's elected legislature passed a law to provide civil marriage equality. Federalism and 225 years of precedent say that California lawmakers should be allowed to enact such legislation.
Proponents of fairness and freedom are winning this debate with the next generation. Poll after poll shows people under age 35 supporting some measure of equality for gay and lesbian families. Supporters of the FMA read these same polls, and they realize that an amendment to the United State Constitution is the only way they can freeze the progress of time. They really do not care about the will of the people; they care about preventing state legislatures and voters in the future from deciding this issue in a way they do not agree with.
Etched in stone at the Jefferson Memorial is this quote from the author of our nation's Declaration of Independence:
"I am not an advocate for frequent changes in laws and constitutions, but laws and institutions must go hand in hand with the progress of the human mind. As that becomes more developed, more enlightened, as new discoveries are made, new truths discovered and manners and opinions change, with the change of circumstances, institutions must advance also to keep pace with the times. We might as well require a man to wear still the coat which fitted him when a boy as civilized society to remain under the regimen of their barbarous ancestors."
Similar state amendments have had serious unintended consequences. In 2004, supporters of proposed constitutional amendments in several states claimed that their proposals were only about defining marriage. Yet two years later, numerous unintended consequences--and dozens of lawsuits--have resulted from the adoption of these amendments. In at least two states, parties have used the amendments as grounds to circumvent laws designed to protect individuals from domestic violence.
In Ohio, a number of defendants have appealed domestic violence charges, arguing that those charges violate the state's marriage amendment, by affording marriage-like legal status to unmarried victims who live with the people accused of attacking them. One Ohio appellate court has concluded the state's constitutional amendment invalidates domestic violence protections for victims in unmarried, cohabiting relationships.
In Utah, a man has filed suit claiming that "Amendment 3," that state's discriminatory marriage amendment, invalidates a restraining order taken out against him by his former cohabiting girlfriend.
How do you want history to remember you and the Republican Party? Polls show that young voters are overwhelmingly supportive of equality for gay and lesbian families, whether it is through civil unions or civil marriage equality. Polls also show young voters are also much more likely to oppose the FMA. In the next five to ten years, the dynamics of this issue will shift greatly and solid majorities will support equality for gay and lesbian Americans. We believe future generations will look back on this amendment effort and wonder how it could have happened. Do you want to be on the wrong side of history?
