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THE MEANING OF THE PROPOSED
FEDERAL MARRIAGE AMENDMENT

July 12, 2004

Signatories:¹

In the context of the recent and ongoing debate over a proposed marriage amendment to the United States Constitution, various questions concerning the meaning and interpretation of the proposed amendment have been raised by opponents of the measure. As supporters and proponents of the amendment, we have prepared this memorandum in an effort to clarify the meaning and intent of the proposed marriage amendment.²

Introduced as Senate Joint Resolution 40 by Senator Wayne Allard and 18 co-sponsors, the marriage amendment provides:

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.

Summary

We are concerned that many arguments voiced in opposition to the marriage amendment are based in hypothetical speculation, rather than serious constitutional analysis. The FMA is a simple, two-sentence amendment which carefully addresses the growing threat to marriage in the United States. In doing so, the Amendment is deliberately crafted so as to preserve the integrity of state regulatory authority over marriage and poses no plausible threat to individual or private organizational actors.

The first sentence of the amendment maintains a common definition of marriage throughout the United States, ensuring consistency in the public legal status which is deeply embedded in both state and federal law. The second sentence reiterates and expands upon the first sentence, ensuring that questions of marriage-like benefits for unmarried couples are reserved to legislative processes. The amendment would have no effect on the various ways that governments might try to provide benefits to couples or individuals based on something other than their marital status.

All implausible arguments to the contrary, the proposed FMA would have no effect on personal arrangements, religious ceremonies or other actions by private individuals or organizations. The FMA takes advantage of the U.S. Constitution’s provision for the people’s representatives to respond to their will and protects, rather than interferes with the principles of federalism. It is a common-sense response to a very real threat to the ability of the people in this nation to protect the most basic institution of society as it has been understood throughout recorded history.

The FMA is Clear and Unambiguous

A recent memo, circulated among members of Congress, argues that the first and second sentences of the proposed amendment contradict one another, in that the second sentence allegedly authorizes same-sex marriage under certain circumstances. Such a reading of the second sentence is unwarranted, and does not comport with the clear language of the amendment.

There can be no contradiction found between the two sentences of the amendment. At most, it could be argued that the second sentence is redundant with respect to marital status, repeating what has already been stated in the first sentence. The first sentence of the amendment provides that throughout the United States, marriage shall be the “union of a man and a woman.” The second sentence states that no state or federal constitutional provision shall be held to require a different result. While this reiteration may be arguably unnecessary, it is far from contradictory.

The second sentence also serves another purpose, however, preserving decisions about legal benefits to the deliberative legislative process. In this respect, the second sentence goes beyond the first, protecting the autonomy of state legislatures to extend benefits according to the needs and desires of their constituents.³ Both sentences must be read as part of the same policy statement: marriage is an important social institution throughout the United States, and cannot be redefined by judicial fiat. The people of the individual states reserve authority to extend or withhold benefits to same-sex couples through their elected legislative bodies.

It has been suggested that this plain reading of the marriage amendment is merely a smokescreen for an amendment which will later be used to in efforts to strike down domestic partnership and other civil benefit arrangements. Opponents cite litigation challenging California’s domestic partnership law or Philadelphia’s “life partnership” ordinance as evidence that the FMA will be used similarly. Whatever the particular merits of the California and Pennsylvania litigation⁴, the outcome of such claims are based upon technical provisions of state law, and will have little bearing upon the interpretation of the proposed marriage amendment.

While there are many in the United States who would prefer that the Congress propose an amendment which would ban civil unions, domestic partnerships, or other similar arrangements at the state level, the interpretation put forward by the sponsors and other supporters in Congress has been clear and unambiguous: the marriage amendment is intended to define marriage as the union of a husband and wife, and to reserve questions of benefits for state legislative bodies.⁵

The FMA Does Not Interfere with Private Actions

Certain opponents of the marriage amendment have argued that the amendment will impinge upon the actions of private individuals and organizations, including religious organizations. To the contrary, the amendment touches only the public legal status of marriage, recognized in all fifty states. Private actions, whatever the source, can neither create a legal marriage nor violate the text of the amendment.⁶ Until recently, all fifty states have had laws which recognize marriage only as the union of a man and a woman, and yet private actors remain free to extend domestic partner benefits, perform or engage in commitment ceremonies, or even refer to themselves as spouses.

It is difficult even to construct a theory on which an amendment dealing with marriage might be applied to private actors. Certainly the absence of language limiting the amendment to government actors is not in itself evidence that it is intended to apply as against private individuals. Neither the Second, the Fourth, the Fifth, nor the Eighth Amendment to the Constitution contains any explicit reference limiting the scope to state actors, yet they are clearly understood as such. For instance the Second Amendment says “the right of the people to keep and bear Arms, shall not be infringed” but it would be implausible to argue that as a result, an employer could not ask an employee to leave their weapons at home.

Marriage has long been a public legal status, directly conferred and regulated by law in each of the fifty states. The solemnization of a marriage, even if performed by clergy or other religious figure, requires state licensure and has legal effect. Concern over the impact of the marriage amendment on private actors appears to be rooted in a misconception of marriage as a private relationship. Marriage, however, is not merely a private relationship, but a public legal status. As such, all constitutional reference to marriage is properly understood as a reference to that legal status.

The Amendment Process is Democratic Decisionmaking at its Apex

Opponents often claim that the FMA somehow infringes the democratic process by writing something new into the Constitution. Under this theory the Bill of Rights and each subsequent amendment have displaced democratic decisionmaking. The Constitutional amendment process ensures significant popular input, both in the process of approval in the Senate and House of Representatives and in the ratification process where a supermajority of states have to concur. Of course, after the amendment is ratified it limits future conduct, but so do all Constitutional provisions. An amendment that has been ratified can also be changed through the democratic process as the experience of Prohibition demonstrates.

The national consensus required for a formal amendment to the Constitution is not the only way in which the meaning of the Constitution is amended, however. The other process (apparently favored by opponents of the FMA) involves a lawsuit with handpicked plaintiffs in a sympathetic jurisdiction where only arguments filtered through the legal briefing process will be heard. Then, the amendment is made by a majority of judges on a court who construe constitutional text to require a redefinition of marriage. At least the FMA would have to ratified by three-fourths of the state legislatures, not a mere handful of judges who hear only arguments made by lawyers.

Finally, as already noted, the amendment would still allow state legislatures to enact laws that provide benefits to unmarried couples.

The FMA is a Defense of Federalism

Some opponents of the FMA argue that it violates the principle of federalism by intruding into domestic relations law, an area traditionally governed by state law. This argument presupposes that there is no threat to federalist principles from the ongoing attempt to secure a redefinition of marriage through the courts. There is reason to believe that some or many courts would adopt an expansive reading of the Full Faith and Credit Clause or other state or federal constitutional provisions that would in effect nullify the policies of states which would choose not to recognize same-sex marriages. Of course, this, as much as a federal marriage amendment, would create a national marriage policy and eviscerate any federalist protection of marriage laws.

It should be noted that the question of marriage validity is already a matter of at least some federal concern. The right-to-marry cases all invalidated state restrictions on marriage on federal grounds. See Loving v. Virginia, 388 U.S. 1 (1967); Zablocki v. Redhail, 434 U.S. 374 (1978); Turner v. Safley, 428 U.S. 78 (1987). As the Defense of Marriage Act indicates, federal law relies on a definition of marriage in extending certain benefits such as Social Security death benefits, 42 U.S.C. §405. and other federal retirement programs. See Hisquierdo v. Hisquierdo, 439 U.S. 572 (1979). At least since the U.S. Supreme Court began the process of incorporating federal constitutional guarantees in its Fourteenth Amendment jurisprudence, a growing number of federal constitutional provisions have limited the states’ power.

As to appropriateness, it must be asked whether it is wise to have fifty different marriage policies in the United States. While there is obviously significant room for variations in many (probably most) state policies, there is some need for uniformity. This is an axiomatic presupposition of a federal constitution. Many of the specific policies requiring unity are specified in the national constitution. The most important examples are included in the limitation on state power, since they ensure state uniformity in such matters as coining money or exercising a foreign policy. U.S. CONST., Art. I, §10. Perhaps most obvious is the Guarantee Clause which rests on the assumption that while specifics of state government may vary, at a minimum a “[t]he United States shall guarantee to every state in this union a republican form of government.” U.S. CONST., Art. IV, §4. The FMA stands for the proposition that the basic legal definition of marriage is a fundamental policy of this type.

Finally, if 3/4 of the states ratify the FMA, this would signal an acceptance of a super-majority of states of any minimal limitation on their power just as the ratification of the 19th Amendment allowed state legislatures to acquiesce in the limitation of their right to deny women the vote.

The FMA Does Not Unduly Constrain the Branches of Government

The memo charges that the proposed FMA would “take the job of constitutional interpretation away from all three branches of government.” While this is technically true (and is true of all other Constitutional amendments that affect government power), it is also somewhat misleading. In practice, the judicial branch has been almost alone in construing the meaning of state constitutions. Thus, the major thrust of the FMA is to curtail judicial redefinition of marriage. To the extent other governmental actors want to use a reading of the constitution to justify a redefinition of marriage (such as when a mayor issues marriage licenses to same sex couples saying the constitution made him do it), they would be constrained by the FMA but such a practice is not likely to be widespread. A legislature, in fact, would be able to offer marital benefits without any constitutional justification for doing so.

Additionally, the memo says that the “federal Constitution should not purport to say what state law does or does not mean.” Taken at an extreme, this would negate the U.S. Supreme Court’s decision invalidating bans on interracial marriage or, in fact, any federal Constitutional limitation on state law. At least the FMA would have to be ratified by a super-majority the states it is regulating.

The FMA Gives the American People a Voice

Some have argued that the proposed marriage amendment will increase the role of the judiciary in determining the definition of marriage and its legal incidents. To the contrary, the amendment would resolve current marriage disputes pending in at least 11 states, while establishing a uniform rule of law which minimizes the scope of future litigation.

In recent years, five primary fields of marriage litigation have evolved: (1) constitutional claims for same-sex marriage (including both state and federal claims); (2) constitutional claims for marital benefits; (3) statutory claims for marital benefits; (4) constitutional claims for interstate marriage recognition; and (5) claims for interstate recognition based on state statute and public policy. Of these five broad areas, the proposed marriage amendment would eliminate (or greatly reduce) the role of judges in resolving constitutional claims for same-sex marriage, marital benefits, or marriage recognition.⁷ Statutory claims for marital benefits would likely remain unaffected, while interstate recognition claims would be minimized (but not eliminated, due to the possibility that states will recognize alternative civil benefit statuses).

The creativity of attempts to make the plain meaning of the FMA seem confusing and contradictory is illustrative of the problem. These creative readings of constitutional provisions by judges have precipitated the issue and the FMA will bring a needed clarity to the matter. By confining the crucial social issue of the definition of marriage to courtroom battles, opponents of the FMA have left the people of this nation with little choice but to amend the Constitution.

Without an amendment, the marriage debate will continue to be waged by attorneys and legal elites, in courts of law where the American people have little or no voice. The amendment process, on the other hand, will produce the type of public dialogue and national consensus which this important issue deserves.

1. Institutional affiliations are included for identification purposes only.

2. This statement will particularly address arguments against the amendment in a memo written by a member of the governing board of the National Capital Area of the ACLU and a partner in a Washington, D.C. law firm.

3. The context for understanding the second sentence is obvious. In November 2003, the Massachusetts Supreme Judicial Court adopted an unprecedented interpretation of that state’s constitution required that marriage be redefined as “the voluntary union of two persons as spouses, to the exclusion of all others.” Goodridge v. Department of Public Health, 798 N.E.2d 941, 969 (Mass. 2003). A few years earlier the Vermont Supreme Court, acting on a similar interpretation, had ordered the state legislature to provide marriage licenses to same-sex couples or create an alternative status (the legislature chose the latter). Baker v. Vermont, 744 A.2d 864 (Vt. 1999). Similar decisions had been made by courts in Hawaii and Alaska, but the people of those states had responded by amending their constitutions, so Vermont and Massachusetts were chosen based on the difficulty of amending their state constitutions. See Brause v. Bureau of Vital Statistics, 1998 WL 88743 (Alaska Super. Ct. 1998); Baehr v. Lewin, 852 P.2d 44 (Haw. 1993).

4. Such lawsuits, seeking to invalidate local partnership ordinances, have met with little success in recent years. See, e.g., Crawford v. Chicago, 710 N.E.2d 91 (Ill. App. Ct. 1999); Schaefer v. Denver, 973 P.2d 717 (Colo. Ct. App. 1999); Slattery v. New York, 686 N.Y.S.2d 683 (Sup. Ct. 1999); Atlanta v. Morgan, 492 S.E.2d 193 (Ga. 1997); Lowe v. Broward County, 766 So.2d 1199 (Fla. Dist. Ct. App. 2000). Where challenges to local domestic partnership laws have succeeded, the decisions have been based on statutory construction of state statutes designating who may be a “dependent” for purposes of public employment benefits. See Arlington County v. White, 528 S.E.2d 706 (Va. 2000); Lilly v. City of Minneapolis, 527 N.W.2d 107 (Minn. Ct. App. 1995).

5. See Senator Wayne Allard, Federal Marriage Amendment Testimony, United States Senate Judiciary Committee (March 23, 2004), here; Representative Marilyn Musgrave, Federal Marriage Amendment Testimony, United States House of Representatives Judiciary Subcommittee on the Constitution (May 13, 2004) here. Highlighting this distinction, several private organizations have declined to support the federal marriage amendment precisely because it does not prohibit recognition of such relationships. See Alan Cooperman, Little Consensus on Marriage Amendment: Even Authors Disagree on Meaning of its Text, WASHINGTON POST, Feb. 14, 2004, at A01.

6. Unless, of course, the private acts illegally purport to create a legal marriage. Under existing law in many states, private actions which purport to create a legal marriage without governmental license or sanction are criminally proscribed. The amendment would have no effect upon such statutes.

7. To the extent that the amendment would still permit litigation regarding benefits not deemed “incidents of marriage,” it proposes no change in existing law.