Marriage Protection Amendment

Legislation

By: United States Congress

Date: January 24, 2005

Source: GovTrack.us. "S.J. Res. 1: Marriage Protection Amendment." 〈http://www.govtrack.us/congress/billtext.xpd?bill=sj109-1〉 (accessed July 26, 2006).

About the Author: The United States Congress is the primary law-making branch of the federal government.

INTRODUCTION

During the 1980s and 1990s, federal courts began examining state statutes dealing with homosexuality, overturning several that outlawed homosexual practice. Several state legislatures also passed laws protecting homosexuals against employment discrimination, and in 1991 three same-sex couples sued the state of Hawaii to obtain marriage licenses. That case reached the state Supreme Court, setting the stage for a ruling that could potentially legalize gay marriage in the state. Of broader importance, U.S. law requires states to recognize legal marriages performed in other states; such a ruling would implicitly legalize same-sex marriage throughout the United States.

Opponents of gay marriage quickly organized to avert such an occurrence. In 1996, the U.S. Congress overwhelmingly passed the Defense of Marriage Act. This bill specified that all federal legislation dealing with marriage would refer solely to heterosexual marriages. It further absolved states of any requirement to recognize same-sex unions approved by other states. President Clinton, a strong supporter of gay rights, signed the legislation into law. In the years after the act's passage, supporters and opponents of gay marriage continued to battle in the courts and through various state legislatures. In the following decade, forty-one states passed their own versions of the fed-eral Defense of Marriage Act, and several states adopted constitutional amendments codifying marriage as an exclusively heterosexual union.

Despite these legislative decisions and the progress they represented, gay marriage opponents faced further threats. Critics of the Defense of Marriage Act claimed that Congress had overstepped its authority in passing the law, circumventing the principle of "full faith and credit" by which state legal decisions are reciprocally accepted by other states. Concerned that a federal court ruling could potentially set aside both the federal and state laws, gay marriage opponents launched a campaign to settle the issue at the Constitutional level. The proposed amendment, titled the Marriage Protection Amendment, contained fewer than one hundred words. It stated simply that marriage in the United States consists of a union between a man and a woman and that no state could redefine marriage.

Amending the U.S. Constitution is a time-consuming, difficult procedure. Amendments must first be approved by a super-majority of two-thirds in both the House of Representatives and the Senate. Following this approval, the amendment must be ratified by three-quarters of the states, with each state choosing when and if to hold its own election. A seven year time limit is typically imposed on the process, and if the proposal receives the necessary votes, it becomes part of the Constitution. Of several thousand amendments proposed to date, only twenty-seven have been enacted.

PRIMARY SOURCE

                   109th CONGRESS

                       1st Session

                       S. J. RES. 1

Proposing an amendment to the Constitution of the United States relating to marriage.

           IN THE SENATE OF THE UNITED STATES

                   January 24, 2005

Mr. ALLARD (for himself, Mr. INHOFE, Mr. LOTT, Mr. ENZI, Mr. DEMINT, Mr. SANTORUM, Mr. CRAPO, Mr. SESSIONS, Mr. VITTER, Mr. THUNE, Mr. ALEXANDER, Mr. FRIST, Mr. TALENT, Mr. BURR, Mrs. HUTCHISON, Mr. KYL, Mrs. DOLE, Mr. MARTINEZ, Mr. ISAKSON, Mr. MCCONNELL, Mr. HATCH, Mr. ROBERTS, Mr. CORNYN, Mr. STEVENS, and Mr. COBURN) introduced the following joint resolution; which was read twice and referred to the Committee on the Judiciary

                 May 18, 2006

        Reported by Mr. SPECTER, without amendment

             JOINT RESOLUTION

Proposing an amendment to the Constitution of the United States relating to marriage.

Resolved by the Senate and House of Representatives of the United States of America in Congress assembled (two-thirds of each House concurring therein), That the following article is proposed as an amendment to the Constitution of the United States, which shall be valid to all intents and purposes as part of the Constitution when ratified by the legislatures of three-fourths of the several States:

Article—

"SECTION 1. This article may be cited as the 'Marriage Protection Amendment'"

"SECTION 2. 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."

SIGNIFICANCE

Critics of the proposed marriage amendment argued that it did little to protect traditional marriage but simply relegated homosexuals to second-class status. Other opponents contended that questions regarding marriage should be reserved for the states, opposing the amendment on principles of states' rights. President Bush, who raised the issue of same-sex marriage in his reelection campaign, told an interviewer that he would not actively campaign for the amendment, because it faced almost certain defeat, though he did speak briefly in its support as the vote approached.

The Marriage Protection Act came to the floor in 2006 but received only forty-nine votes in the Senate. Supporters remarked that they had not expected the measure to pass, leading critics to question why Senate time was spent on the measure. Sponsors of the bill promised to reintroduce it the following year.

The year 2006 marked the second recent attempt to secure a constitutional amendment defining marriage. A 2003 proposal entitled the Federal Marriage Amendment contained virtually identical language and also failed to pass. As of 2006, only Massachusetts allowed gay marriages, while forty-one states prohibited gay marriage or civil unions by law or state constitutional amendment.

FURTHER RESOURCES

Books

Lehman, Jennifer M. Gay & Lesbian Marriage and Family Reader: Analyses of Problems & Prospects for the 21st Century. New York: Richard Altschuler & Associates, 2001.

Richards, David. The Case for Gay Rights: From Bowers to Lawrence and Beyond. Lawrence: The University Press of Kansas, 2005.

Stiers, Gretchen. From This Day Forward. New York: Saint Martins Press, 1999.

Periodicals

Killian, Mary Lou. "The Politics of Gay and Lesbian Marriage: States in Comparative Perspectives." American Political Science Association Annual Meeting (2002):1-23.

Kokoski, Paul. "Cheers and Jeers for the Proposed Gay-Marriage Ban." Christian Science Monitor 9 (June 8, 2006): 8.

McFadden, Robert. "Bloomberg is Said to Want State to Legalize Same-Sex Marriages." New York Times (March 6, 2004): A1, B2.

Web sites

American Civil Liberties Union. "Frequently Asked Questions about the Federal Marriage Amendment and Gay Marriage." February 25, 2004 〈http://www.aclu.org/lgbt/gen/11931res20040225.html〉 (accessed June 15, 2006).

Stateline. "50-State Rundown on Gay Marriage Laws." November 3, 2004 〈http://www.stateline.org/live/〉 (accessed June 15, 2006).

USA Today Online. "Bush Backs Federal Marriage Amendment." June 3, 2006 〈http://www.usatoday.com/news/washington/2006-06-03-gay-marriage_x.htm?csp=34〉 (accessed June 15, 2006).