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PROPOSED FEDERAL MARRIAGE AMENDMENT (FMA) TO THE U.S. CONSTITUTION

ALTERNATIVE WORDINGS WRITTEN DURING 2003 & 2004

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Conflict over the wording of the Federal Marriage Amendment:

Alan Cooperman of the Washington Post wrote in 2003-NOV-29: "A broad array of religious groups and conservative political activists has united behind the idea of a constitutional amendment against gay marriage. But the fledgling coalition is deeply divided about what, exactly, the amendment should say."

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Different approaches used by various advocacy groups:

When conservative Christian advocacy groups attempt to change laws, they often take a different approaches than do pro-choice, gay-positive, and other groups. For example:

bulletThe eventual goal of gay/lesbian/bisexual/transsexual groups is to change the North American culture so that the public accepts homosexuality and bisexuality as two sexual orientations which are normal, natural, and morally neutral for a minority of adults. They have often worked towards this target by seeking a multitude of tiny, incremental changes to legislation at the federal, state, and local levels. They are willing to commit major resources into winning small battles. Two examples are:
bulletPromoting health insurance within a single company to cover the same-sex partners and children of employees, or
bulletPromoting a same-sex partner registry in a city or state, even though it gives few benefits.
bulletReligious and social conservatives have often taken a very different approach. They prefer legislation that will immediately fulfill all of their wants and desires. The bills that they initiate often turn out to be declared unconstitutional by the courts. Some laws only last for a few hours before a court issues a temporary injunction to prevent them from being applied. But they will meet all of components of the groups' wish list. Two examples are:
bulletIn their promotion of legislation at the state and federal level to criminalize D&X abortions (a.k.a. Partial Birth Abortions) they crafted bills so vague that they could criminalize a wide range of abortions. They could be interpreted as banning abortions in all three trimesters. The laws were clearly unconstitutional because they violated the Roe v. Wade decision of the U.S. Supreme Court which ruled that states could not significantly impede women from seeking early abortions. They also lacked adequate health clauses to protect the woman from serious, disabling, injuries.
bulletIn their promotion of legislation to prohibit nudity in strip joints, they have made the legislation so general that it would also criminalize family naturist resorts.

This difference in approach by many conservative Christian groups caused division over the Federal Marriage Amendment (FMA):

bulletSome within the community wanted a narrowly focused bill that had a good chance of being passed by the House, Senate and state legislatures.
bulletOthers wanted a generally worded amendment that would grant all of their wants, but which would have much less chance of being passed.

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Conflicting goals:

What Alan Cooperman referred to as "the fledgling coalition" among religious conservatives was divided over the wording and scope of the Federal Marriage Amendment:

bulletSome religious conservatives have pressed for an amendment that would simply freeze the status-quo as it existed in mid-2003. This would prevent states from granting same-sex couples the right to marry. However, it would allow states to create the type of civil union found in Vermont and the type of domestic partnerships approved by the California legislature.
bulletOthers would prefer an amendment that would turn back the clock to 1999, and disallow all state-created civil unions and domestic partnerships. This would strip any rights that registered same-sex couples and their children currently have.
bulletStill others appear to prefer an amendment that would remove rights from both registered same-sex couples and those opposite-sex, heterosexual couples who are living common-law. Only opposite-sex, married couples and their children would receive any recognition and benefits.

Glenn T. Stanton is a senior analyst at the Fundamentalist Christian group "Focus on the Family." They and the Family Research Council are probably the two most active groups fighting equal treatment of same-sex couples. He described the conflict as being between "purity" and "pragmatism." He said: "Do we go for everything that we want, or take the best we think we can get?"

The stakes are high. In order to amend the U.S. Constitution, approval must be given by:

bulletSixty-seven (66%) out of 100 Senators,
bulletTwo thirds of the membership of the House of Representatives, and
bulletThirty-eight states (75%) who must ratify the amendment.

If a proposed amendment does not meet one of these hurdles, it is dead. The he process is intended to be difficult, to prevent the U.S. Constitution from being easily changed on a whim.

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2003 activity: three proposed FMA wordings:

By late 2003, at least three proposed amendments were circulating in Washington:

bulletOriginal amendment: The text with the greatest political support was crafted by the Alliance for Marriage, with the backing of the Roman Catholic Church, many black Protestant denominations and certain Jewish and Muslim traditions. It was introduced to the House of Representatives as House Joint Resolution 56 on 2002-MAY-15. It 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

An identically worded resolution was introduced in the Senate on 2003-NOV-25 by Wayne Allard (R-CO), Jeff Sessions (R-AL) and Sam Brownback (R-KS).

Constitutional experts, who are not religious conservatives, generally agree that this resolution would declare unconstitutional all past and future legislation which give benefits to couples and their children who have formed
civil unions (like Vermont) or registered domestic partnerships (like California) or common-law relationships.

bulletRevised amendment: On 2004-MAR-23, the sponsors of the Federal Marriage Amendment, Senator Wayne Allard (R-CO) and Representative Marilyn Musgrave (R-CO) announced that they are rewording the bill. They explained that the changes are purely "technical" and said that the intent of the bill is unchanged: to prohibit same-sex marriages and prevent "activist judges" from requiring states to create civil unions. The new wording would allow state legislatures to create and continue civil unions,  domestic partnerships, and common-law relationships which provide at least some of the state benefits that opposite-sex married couples automatically receive.

The first sentence in the new bill remains unchanged.

The second sentence is changed from:

bullet"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."
bulletTO
bullet"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."

(Emphasis ours).

The proposed wording would leave state and federal legislatures with the power to create civil unions and domestic partnerships. The states could continue to grant benefits to opposite-sex common law couples and their children. The House version of the amendment bill is HJR 56; an identical Senate bill is SJR 30. A vote is expected in mid-2004-JUL.

bulletA third proposed amendment: This was crafted on 2003-OCT-15 at a meeting of the Arlington Group which includes the leaders of most of the largest Fundamentalist Christian para-church groups in the U.S.: American Values, Concerned Women for America, Empower America, Family Research Council, Focus on the Family, and Prison Fellowship. They unanimously agreed to promote adding a third clause to the wording of the original amendment. It would say:
bullet"Neither the federal government nor any state shall predicate benefits, privileges, rights or immunities on the existence, recognition or presumption of non-marital sexual relationships."

According to Washington Post reporter Cooperman, Chuck Colson said that this third clause would prevent the creating of any form of "substitute marriage." Colson allegedly said that state legislatures still could establish civil unions, but only if they conferred the same benefits on "any two people who live together [such as]...an unmarried heterosexual couple or two old spinsters." Dale Carpenter, a gay male, a Republican, and a professor at the University of Minnesota said that trying to prevent state legislatures from granting benefits based on a sexual relationship might not work. For example, the civil union legislation in Vermont does not require same-sex couples to state that they are involved in a sexual relationship. Carpenter said: "This third sentence doesn’t really accomplish anything, except to expose the extent to which some religious conservatives are fixated on gay sex."

Maggie Gallagher, president of the conservative group Institute for Marriage and Public Policy opposes this additional sentence. She regards civil unions to be an "unwise step." But she feels that allowing same-sex marriage is far worse. She said that this "...is why I cannot join any coalition willing to fight only for the whole load but certain to go down to 'noble" defeat."

Colson is quoted as saying that the Arlington Group fears that an amendment that protects marriage "in name only" while allowing near marriage in the form of civil unions would not energize sufficient Fundamentalist and other Evangelical Christian support to see the amendment clear Congress and obtain ratification by 38 states.

This proposed amendment has not been introduced to Congress.

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Media coverage:

There appear to be gaps in the coverage of the FMA by the media:

bulletMost of the couples who would have their rights and benefits stripped away by some of the proposed amendment wordings are opposite-sex couples living common-law. However, the media strangely seems to have concentrated its coverage almost entirely on the loss of same-sex couples.
bulletMost articles in the media seem to overlook the most vulnerable people who would be adversely affected by some of the proposed wordings: the children of the same-sex and opposite-sex couples.

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References:

  1. Alan Cooperman, "Opponents of gay marriage divided," MSNBC News, 2003-NOV-29, at: http://www.msnbc.com/news/999176.asp
  2. To see a copy of the bills, go to Thomas: Legislative Information on the Internet at http://thomas.loc.gov and enter H.J. Res. 56 for the House bill in the Bill Number box and click on Search. Enter S.J. Res 30 for the Senate version.
  3. Michael Foust, "Senate plans mid-July vote on Federal Marriage Amendment," Baptist Press, 2004-JUN-21, at: http://www.bpnews.net.
  4. James Dobson, "Marriage under fire: Why we must win this war," Multnomah, (2004). Read reviews or order this book safely from Amazon.com online book store.
  5. The "NoGayMarriage.com" web site is at: http://www.nogaymarriage.com/
  6. "Faith, Family & Freedom - The Battle for Marriage: Imminent Vote," at: www.wevotevalues.com

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Copyright © 2004 by Ontario Consultants on Religious Tolerance
Originally written: 2004-JUN-21
Latest update: 2004-JUN-24
Author: B.A. Robinson

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