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PROPOSED FEDERAL MARRIAGE AMENDMENT TO THE U.S. CONSTITUTION

INTRODUCTION TO THE BILL
AS ORIGINALLY WORDED IN 2002

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Initial text of the proposed amendment:

Representative Ronnie Shows, (D-MS) introduced a bill into the House of Representatives on 2002-MAY-15, popularly called the "Marriage Amendment." By month end, the bill had 11 co-sponsors, including Representatives David Phelps (D-IL), Ralph Hall (D-TX), Sue Myrick (R-NC), Jo Ann Davis (R-VA) and Chris Cannon (R-UT), and others. 1 If successful, it would become the 28th amendment to the U.S. Constitution. It would have major, long-term, cultural, moral and social implications.

The amendment, as introduced, stated:

"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, 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." 2

bulletThe first sentence is quite clear. It would continue the definition of marriage as it exists in all but one state:
bulletAll states already have laws and regulations that either define, or imply, or assume that marriage is restricted to opposite-gendered couples -- a bride and a groom. The first sentence in the proposed amendment simply reinforces regulations and legislation that existed in every state, from Vermont to Hawaii; from Alaska to Florida. Marriage has already been restricted to one woman and one man. However, in 2003-NOV the Supreme Judicial Court of Massachusetts ruled that there was a conflict between the state's marriage laws and the constitutional requirement that men and women be treated equally. The court ordered the state to start issuing marriage licenses to same-sex couples. The proposed amendment would overrule the Supreme Judicial Court's ruling.
bulletMost states have recently-passed DOMA (Defense of Marriage Act) laws which reinforce the definition of marriage as being between one man and one woman.
bulletWhen the state of Vermont created a new type of family for gays and lesbians that granted them all of the benefits normally given only to married couples, they simply called it a "civil union." This avoided having any impact on the rights of married Vermont couples -- both present and future. Similarly, when California introduced domestic partnerships for same-sex couples, they avoided any impact on the rights of opposite-sex couples.

This first sentence in the amendment would prevent any state from adopting the same type of legislation that was recently created in the Netherlands. In late 1999, the definition of marriage was expanded in that country to include same-sex couples. Gay and lesbian Dutch engaged couples can now get a marriage license-- just as any other couple -- and then marry. They can also adopt. They have received the full privileges that were previously considered special rights -- those restricted to heterosexual married couples only. The sentence would also prevent courts from requiring states to issue regular marriage licenses to same-sex marriages, and register their marriages as happened starting in 2003 and 2004 in Ontario, Quebec and British Columbia, Canada.

bulletThe second sentence has been interpreted by different groups in various ways, including:
bulletTo its supporters, it is merely preserving the status quo. It would prevent the courts or legislatures from allowing same-sex couples to marry. It would not inhibit any state legislature from creating civil unions or giving unmarried persons some of the rights and benefits of married people.
bulletTo its detractors, it would permanently strip away rights from all common-law couples: same-sex and opposite sex. This includes benefits granted through civil unions (as in Vermont), or domestic partnerships (as in California), or common-law opposite-sex relationships. It bans any benefits that the states or federal governments may wish to grant to them in the future.

Everyone agrees that the amendment would not directly affect any employee benefits offered by employers. However, the amendment's eventual success or failure will affect the mood of the public towards all common-law couples, and in particular towards gays, lesbians and bisexuals in loving, committed, same-sex relationships. This will probably have a major impact on the mood of employers towards their employees, and thus indirectly influence the willingness of companies to extend benefits to its employees who are not married.

bulletThe term "groups" at the end of the amendment appears to refer to multiple relationships involving more than two individuals. This is apparently a reference to polygamy (usually either polygyny -- one man and multiple women -- or and polyandry -- one woman and multiple men). Such family arrangements are extremely rare in the U.S., expect among some small Mormon sects. However, polygyny was once common among members of the Church of Jesus Christ of Latter-day Saints, the Mormons. The Church suspended the practice in the late 19th century after they reported a special revelation from God. The proposed amendment would prevent the main Mormon church from reinstating polygyny, although there is no indication that they plan to do so. In fact, they have excommunicated their own members who practice this practice. Polygyny was also common in Israel during biblical times. Some renowned men described in the Hebrew Scriptures (Old Testament) had multiple wives, many female salves and many concubines.

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Comments from supporters of the amendment:

bulletAANEWS reports: "Executive Director Matt Daniels [of Alliance for Marriage]: told the [Washington] Times that the proposed amendment 'simply protects the legal status quo from being changed by the courts.'  He also accused gays and lesbians of trying to make 'an end run around public opinion and the democratic process' by going to court to guarantee their rights." 3
bulletAccording to the Alliance for Marriage's own web site, the amendment would preclude "...the courts...from distorting existing constitutional or statutory law into a requirement that marital status or the legal incidents thereof be reallocated pursuant to a judicial decree." 4 Their web site states that civil unions or domestic partnerships could not be imposed by the courts, but could still be created by state legislatures. Also, under the amendment, state governments would be free to grant, to common-law or civil unionized couples, some or all benefits that are given to married couples. The Alliance views the amendment as not a big deal. It merely preserves the current status of marriage.
bulletCardinal Anthony Bevilacqua, of the Roman Catholic church's Philadelphia diocese, praised an earlier version of the amendment in 2001: "I commend all the men and women of various races, faiths and political parties who have committed themselves to the task of promoting the sacred dignity and value of marriage through this amendment."

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Comments from those opposed to the amendment:

Some groups believe that the wording of the second sentence would strip away certain rights, benefits, and privileges from families, including children, of unmarried spouses. Any rights given to married couples under present or future legislation could not not be also given to common-law couples, or to "civil unionized" couples as they have been in Vermont, or to "domestic partners" in California as they are scheduled to receive at the start of 2005. It would change the legal status of tens millions of couples in the U.S., and their children. In an attempt to oppress homosexuals, the supporters of the amendment would create major hardship for non-married couples, most of whom are heterosexual. The media concentrated on the same-sex couple aspects of the proposed amendment. The stripping away of rights of common-law opposite-sex couples rarely appears in newspapers or TV programs.

Some reactions:

bulletAccording to AANEWS: "Christopher Anders of the American Civil Liberties Union said that the measure would invalidate numerous state and local domestic partnership laws. 'With only a few exceptions, most of the anti-gay attacks in Congress are the legal equivalent of sticks and stones.'  He compared the legislation with 'a nuclear bomb,' adding 'It will wipe out every single law protecting gay and lesbian families and other unmarried couples.' " 5
bulletThe American Civil Liberties Union (ACLU) states that the amendment would:
bullet"...Define marriage as strictly between a man and a woman," and
bullet"Invalidate all state and local domestic partnership laws" which currently exist in eight states and over 100 cities, towns and counties, and
bullet"Nullify civil rights protections based on marital status," and
bullet"...Prohibit state and local governments from making their own decisions on providing benefits to their employees." 6

The ACLU points out that the range of rights that would be wiped out is immense. For example, there are many state laws which protect unmarried elderly couples who decide to not marry because they could not handle the reduction of their pensions. There are laws that assure same-sex partners that they will have access to their spouse in the hospital. There are even state laws that allow a person to oppose the autopsy of a close friend or partner because of the deceased's religious beliefs. All would be suddenly become unconstitutional if the amendment were passed.

The ACLU points out that none of the existing 27 amendments to the U.S. Constitution have restricted individual freedoms. Many have granted new freedoms. The proposed amendment would be the only one that would strip away rights and freedoms. It would affect people from all walks of life, of both genders and all sexual orientations.

bulletThe Lambda Legal Defense and Education Fund is "the nation’s oldest and largest legal organization, dedicated to achieving full recognition of the civil rights of lesbians, gay men, bisexuals, transgender people, and people with HIV or AIDS." David Buckel, senior staff attorney and coordinator of the Lambda's Legal Marriage Project, comments: "We agree with the proponents of the constitutional amendment that marriage is important, and that’s precisely why every loving couple and family needs access to it...To take the extraordinary step of amending the Constitution to prohibit states from giving gay couples and their children the legal protections they need and deserve is an affront to justice." Lambda feels that: "many families can be strengthened by the rights and responsibilities that civil marriage provides. For example, with marriage a spouse can:
bulletProtect children through a strengthened parent-child relationship;
bulletRely on financial support from the other spouse;
bulletParticipate in health care and medical decisions, and have hospital visitation;
bulletTake medical leave to care for an ill spouse;
bulletAutomatically inherit the home and personal possessions." 7

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References:

  1. Alliance for Marriage has its home page at: http://www.allianceformarriage.org/
  2. H.J.  Res.  93. To see a copy of the bill, go to Thomas: Legislative Information on the Internet at http://thomas.loc.gov and enter H.J.  Res.  93 in the Bill Number box and click on Search.
  3. "Religious group, house clique behind new marriage amendment," American Atheists' AAANEWS, 2002-MAY-22.
  4. "Multicultural marriage coalition introduces the federal marriage amendment in Congress today with bi-partisan support: Strong Bi-Partisan Sponsorship Reflects The Fact that the Future of Marriage In America Is More Important Than Partisan Politics," Alliance for Marriage, 2002-MAY-15, at: http://www.allianceformarriage.org/
  5. "Religious group, house clique behind new marriage amendment," American Atheists' AAANEWS, 2002-MAY-22.
  6. "Oppose writing intolerance into the US. Constitution," American Civil Liberties Union, at: http://www.aclu.org/action/marriage107.html
  7. "Lambda Legal Condemns Attempt to Amend U.S. Constitution to Prohibit Marriage by Lesbian and Gay Couples: Leading Gay Rights Legal Group Calls Move A 'Cynical Political Ploy'," Lambda Legal Defense and Education Fund, 2002-MAY-15, at: http://www.lambdalegal.org/cgi-bin/

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Copyright © 2002 to 2006 by Ontario Consultants on Religious Tolerance
Originally written: 2002-MAY-26
Latest update: 2006-MAY-24
Author: B.A. Robinson

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