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 (currently thirty-eight). The most recent Congressional vote to take place on the proposed Amendment occurred in the United States House of Representatives on July 18, 2006 when the Amendment failed 236 yea to 187 nay votes, falling short of the 290 yea 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 yea to 48 nay votes, falling short of the 60 yea votes required to proceed to consideration of the Amendment.
Same-sex marriage is currently legal in two U.S. 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. Both decisions could be reversed by an amendment to the state constitution; to date, no such amendment has successfully been passed in Massachusetts or California. On June 2, the California Marriage Protection Act qualified for the 2008 General Election ballot. If approved by California voters, it would amend the California Constitution to provide that "Only marriage between a man and a woman is valid or recognized in California. Several other states including Vermont, California, New Jersey, Washington, Oregon, Connecticut, and New Hampshire allow same-sex couples to enter into civil unions or domestic partnerships that provide some of the rights and responsibilities of marriage under state law. Twenty-six states have passed state constitutional amendments defining marriage as being between one man and one woman.
Some circuit courts have upheld state constitutional amendments banning same-sex marriage. Notable among these cases was the 8th Circuit Court of Appeals' affirmation of Nebraska's constitutional amendment which defines marriage as between a man and a woman, and states that unions of two people in a same-sex relationship as marriage or similar to marriage shall not be valid or recognized in Nebraska.
The most important Federal decision on same-sex marriage to date was the 1972 summary decision of the United States Supreme Court in Baker v. Nelson. When the issue of same-sex marriage came before the Court in 1972, it was dismissed for "want of a substantial federal question". Unlike a denial of certiorari, a dismissal for "want of a substantial federal question" constitutes a decision on the merits of the case, and as such, is binding precedent on all lower Federal Courts. Baker has been cited as binding precedent in numerous lower court decisions since, and unless over-ruled, remains the law of the land in regard to this issue.
The original Federal Marriage Amendment, written by the Alliance for Marriage, was first introduced in the 107th United States Congress in the House of Representatives by Democratic Representative Ronnie Shows (D-MS) with 22 cosponsors.
Marriage in the United States shall consist only of the union of a man and a woman. 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.
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. The bill was introduced in the Senate by Senator Wayne Allard (R-Colo.) on November 25, 2003 and designated S.J.Res.26. It was immediately referred to the Senate Committee on the Judiciary.
The 2004 version of the Federal Marriage Amendment stated:
Marriage in the United States shall consist solely 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 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 two missing votes were those of John Kerry and John Edwards, who chose to remain on the Presidential campaign trail. The 48 votes in support of the cloture motion were 12 votes short of the 60-vote supermajority (three-fifths) needed to end debate and force a vote on the Amendment itself. A number of Republicans, including 2008 Republican Presidential nominee John McCain, joined Democrats in voting against the cloture motion, citing concerns about the Amendment's wording and the principle of extending federal power into an area of policy traditionally managed by states. On July 15, 2004, the motion to proceed to consideration of the Amendment was withdrawn 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 (two-thirds) are required for passage of a proposed Constitutional amendment.
The bill was designated S.J.Res.1 in the Senate and was immediately referred to the Senate Committee on the Judiciary. On November 9, 2005, the Subcommittee on Constitution, Civil Rights and Property Rights approved the bill for consideration by the full Judiciary Committee. On May 18, 2006, the Judiciary Committee reported to the Senate and the bill was placed on the legislative calendar. The motion to proceed to the measure was first made on June 5, 2006. A cloture motion on the motion to proceed was then presented in Senate. On June 6 and 7, the motion to proceed to the measure was again considered in the Senate. On June 7, a cloture motion to force a direct vote on the Marriage Protection Amendment was defeated in the Senate by a margin of 49 nay votes to 48 yea votes, with the vote mostly following party lines with Democrats opposing and Republicans in favor. The 48 votes in support of the cloture motion were 12 votes short of the 60-vote supermajority (three-fifths) needed to end debate and force a vote on the Amendment itself. Eight Republican Senators opposed or did not vote; four Democratic Senators favored or did not vote. The only Senators who changed their position from the 2004 vote to the 2006 vote were Senators Judd Gregg and Arlen Specter, both of whom voted Yea in 2004 and Nay in 2006.
The bill was designated H.J.Res.88 in the House and was immediately referred to the House Committee on the Judiciary. On July 17, 2006, rules were recommended by the House Rules Committee with regards to debate and voting on the proposed Amendment. The rules were passed on July 18. The resolution was immediately considered. Passage of the proposed Amendment failed 236 yea votes to 187 nay votes, where 290 yea votes (two-thirds) are required for passage. The motion to reconsider was immediately laid on the table and agreed to without objection. Twenty-seven Republican Representatives opposed the FMA; thirty-four Democrats voted in favor of the FMA and one Independent voted against the FMA in the vote on July 18, 2006 in the House.
The second sentence would have restricted how the courts were allowed to interpret federal and state anti-discrimination laws and constitutional amendments with regard to equal protection of non-married couples, regardless of sexual orientation. State laws would be defined to include local, city and county ordinances, codes and regulations.
The legal consensus is that the 2003 version of the FMA would have barred all governments from recognizing same-sex marriage from, civil union or domestic partnership status. It also might have prohibited the granting of any of the civil rights and responsibilities of marriages to any unmarried couple, including responsibilities regarding joint parenting, adoption, custody and child visitation rights, joint insurance policies, veteran's benefits, and domestic violence relief such as restraining and protection orders.
It is unclear what effect the 2003 version of the FMA would have had on the enforceability of state or local domestic partner or civil union laws. Some legal experts concluded that the second sentence would effectively prohibit states and local governments from passing laws granting civil unions, domestic partnerships, or other similar laws by making such laws unenforceable.
The 2004 version and its successors replaced the phrase "unmarried couples or groups" with "any union other than the union of a man and a woman." As a result, the FMA would not overturn state laws that grant "legal incidents" of marriage to unmarried male-female couples, such as those in common law marriages.
The second sentence of the later version no longer referred to "state or federal law" allowing flexibility such that it would likely have allowed state or federal legislators or voters to enact legislation granting some of the "legal incidents" of marriage to same-sex couples. Some legal scholars still questioned whether civil unions would be permitted under this revised language.
The later version of the FMA would prohibit courts from interpreting any state or federal constitution to require same-sex marriage.
On January 25, 2005, according to the New York Times, Bush told a privately invited group of African-American community and religious leaders that he remained committed to amending the Constitution to "ban same-sex marriage". Over the course of the next two days, it was revealed by the Washington Post and USA Today that the Bush Administration had paid columnists to promote its views. The Department of Health and Human Services paid Maggie Gallagher $21,500, and Mike McManus $49,000, to write syndicated news columns endorsing the FMA. Additionally, Gallagher also received $20,000 in 2002 and 2003 to write a report on government initiatives to strengthen marriage. McManus leads a group called "Marriage Savers" promoting marriage as defined between a man and a woman.
The FMA has been a somewhat divisive issue within the Republican Party, dividing them by region. Northeastern Republicans generally oppose the amendment while Southern and Midwestern Republicans generally support it.
Previously, on February 24, 2004, Bush called for an amendment which would have outlawed gay marriage, and which would have disallowed state constitutions from recognizing or enforcing gay civil unions. Although this fact was not widely publicized outside of the gay press, Bush's statement included a requirement that any amendment "leav[e] the state legislatures free to make their own choices in defining legal arrangements other than marriage." The White House partly clarified Bush's position in a February 24 2004 press conference with White House Press Secretary Scott McClellan, who stated that by calling on the FMA to permit states the possibility of creating other "legal arrangements," Bush specifically meant to permit states the possibility of enacting civil unions. (McClellan also stated, however, that Bush did not personally support civil unions.) Similarly, at the February 25 2004 press conference, McClellan stated that the White House intended to work with Congress to develop language for the FMA that permitted states to enact civil unions. Although Bush frequently spoke about FMA on the campaign from February and November 2004, he avoided mention of the phrase "civil unions" until an ABC News interview of October 26 2004, aired one week before the election.
The FMA's Republican co-sponsors, Senator Wayne Allard (R-CO) and Representative Marilyn Musgrave (R-CO), announced new language for the proposed amendment on March 23, 2004, replacing the second sentence of the amendment with "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." Both Allard and Musgrave called the change purely "technical.
According to James Dobson, founder of Focus on the Family, the President (speaking through a White House spokesman) agreed with the re-worded amendment. At no point after March 23 2004 did President Bush voice disagreement with the language of the FMA as it was considered and subsequently voted on by the Senate and House of Representatives.
Pundits alleged in the week before the 2004 election that Bush had changed his mind, that he was expressing support of individual states' rights to permit civil unions in a statement made on October 26, 2004. Before October 26 2004, however, Bush had never personally voiced support for states' rights to "civil unions," and avoided all mention of an exception for "civil unions" when speaking about the FMA during his 2004 political campaign. The true meaning of the October 2004 statement remains to be seen, and since his re-election, Bush has avoided mention of support for states' rights to civil unions. By contrast, although Kerry supported a Massachusetts State Amendment to traditionally define marriage, he did not support the Federal Marriage Amendment nor a ban on civil unions. Kerry has voiced personal support for civil unions, while George Bush opposed them as Governor of Texas and has never said that he personally supports them (only that he would no longer deny an individual state the right to permit them).
Opponents of the FMA claim polling of the public has shown a cautious response, with many polls indicating opposition, even in states such as Arizona and Colorado which are normally thought of as socially conservative. They cite Pew Research Center exit polls from the 2004 elections finding that 25% of polled voters support same-sex marriage and another 35% support civil unions. Since FMA opponents claim the amendment bans civil unions they conclude that the FMA is not widely accepted.
While many Democrats believe that the Federal Marriage Amendment was a tool utilized by Bush and Karl Rove to get votes, it is estimated that 12% of Bush voters support same-sex marriage and over 50% support civil unions. This suggests that the voting base for the Republican party has a far more divided position on this issue than is often perceived.
On the other hand, of the 11 states in which same-sex marriage amendments were on the ballot, all passed handily. Bush won in nine, including Ohio. Interpretation of some exit polling suggests that the amendments may have brought out one million additional voters, most of which came out for the first time to cast their ballots for Bush. Notably, a vast majority of these states have not voted for a Democrat in many years. The two states that Bush did not win, Michigan and Oregon, still passed amendments barring same-sex marriage.
However, Roberta Combs, President of the Christian Coalition of America claims, "Christian evangelicals made the major difference once again this year." In the 2000 Presidential Election, there was some speculation that many evangelicals did not go to the polls and vote because of the October surprise of George W. Bush's drunk-driving arrest record. In a dozen swing states that decided the presidential election, moral values tied with the economy and jobs as the top issue in the campaign, according to Associated Press exit polls. The question of what "moral values" means is open, however, to much interpretation. Take, for example, the state of Minnesota, where voters ranked moral values as their highest priority. Even so, Kerry still won the state.
Many people insist that the popularity of moral issues in the election was a consequence of voter affirmation for Bush policies. Additionally they claim that so-called moral issues are the clumping of topics that by default appeal to the GOP's base of voters, especially considering Bush's positions on the War on Terrorism. According to a Pace University Poll, most voters who voted with moral issues as a principal concern were happy with the state of the economy and also were early deciders in the Presidential race for Bush: 75% of new voters were self-declared Republicans, 68% were Southerners, and 67% were evangelicals.
Others claim that moral issues did not cause Bush's victory, since most Americans are amenable to allowing some benefits for same-sex couples. But the way the Federal Marriage Amendment was introduced, specifically forcing an "all or nothing" approach to the issue, may have benefited the GOP.
Opponents of the FMA argue that it may complicate efforts to enforce laws against domestic abuse in heterosexual relationships involving unmarried couples. They note that two Ohio courts ruled that Ohio's similar amendment made the state's domestic violence laws unconstitutional as applied to unmarried couples, because they created a "quasi-marital relationship". (although the decisions were later reversed). Supporters of the FMA assert that this argument was an invalid scare tactic from the outset and that the FMA would not prevent laws against domestic abuse from being applied to unmarried couples. Ohio's Domestic Violence Statute was written in a unique manner. No other State has a Domestic Violence Statute written in the same manner. It would have been legally impossible for Courts in other States to reach the same result as the two Courts in Ohio did. Additionally, even in Ohio, 8 of the 10 Ohio Courts that addressed the effect of the State Amendment on Domestic Violence Laws found no conflict. Additionally several Attorneys General of other states issued legal opinions finding that no such conflict would exist. With the final ruling of the Supreme Court of Ohio, which held that the DV Statute was not in-conflict, no State faces any contention between marriage Statutes and Domestic Violence Laws.