Response of Defend Marriage
to Some of the Most Common Concerns Raised About
The Federal Marriage Amendment
Introduced as Senate Joint Resolution 40 by Senator Wayne Allard
and 18 co-sponsors, the Federal Marriage Amendment (FMA) 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.
As the debate in the Senate draws near, various advocacy groups
have questioned the legitimacy of the FMA. Defend Marriage here
sets out, in brief, its views on some of the more common of these
objections.
1. The Constitution does not and should not have anything
to do with marriage.
Whether Americans like it or not, the Supreme Court in June 2003
placed the issue of marriage in the Constitution. In Lawrence
v Texas, the Court ruled that state legislatures cannot treat
homosexuality any differently than heterosexuality. The Court stated
that “our laws and tradition afford constitutional protection to
personal decisions relating to marriage, [and] procreation” and
“persons in a homosexual relationship may seek autonomy for these
purposes, just as heterosexual persons do.” Relying on Lawrence,
the Supreme Judicial Court of Massachusetts thereafter forced that
state to legalize same-sex marriage. The mayor of San Francisco
and other municipalities now say that state and federal constitutions
demand the issuance of same-sex marriage licenses.
Since the courts have construed state and federal constitutions
to include a purported “right” to same-sex marriage, it is incumbent
upon Congress to ensure that the definition of marriage throughout
the United States reflects the will of the people. This can only
be done through the established amendment process.
2. Marriage is a question the Constitution wisely leaves
to the people to decide in their respective states.
Although the Constitution – as written in 1789 – wisely left marriage
and family law to the states, the U.S. Supreme Court (in Lawrence)
has now concluded that the states may not distinguish between homosexuality
and heterosexuality. As Justice Scalia noted, Lawrence
“dismantles the structure of constitutional law that has permitted
a distinction to be made between heterosexual and homosexual unions,
insofar as formal recognition in marriage is concerned.” Accordingly,
marriage is no longer a decision that the people of the
several states can determine for themselves.
Does the Massachusetts legislature have any say in who can get
married? Can the Massachusetts legislature even suggest that the
state give a different name, like “civil union,” to state-recognized
unions of homosexual couples? No, says that state’s highest court;
the constitution (as construed in Lawrence) forbids states
from treating homosexuals any differently than heterosexuals.
Thus, if you believe that marriage is a question for the people
and their state legislatures, a constitutional amendment is required
to return decisionmaking power back to the people.
3. The Constitution is sacred and a decision to amend it
should not be taken lightly.
The United States Constitution is perhaps the grandest governing
document in human history. This basic charter, therefore, should
not be amended except in the most compelling circumstances. Such
circumstances are now present.
Recent decisions of the U.S. Supreme Court (as well as lower federal
and state courts) completely disregard the text, structure, history
and actual practices and traditions of the American people. The
Supreme Court’s departure from constitutional text and American
history and tradition on questions related to human sexuality and
marriage dramatically upsets the proper balance of power between
the judiciary and the legislative branches of government. As Chief
Justice John Marshall noted in the famous decision of Marbury
v. Madison in 1803, America is governed by “a written constitution”
and “the framers of the constitution contemplated that instrument
as a rule for the government of courts, as well as of the
legislature.” (Emphasis by Justice Marshall.)
The FMA is needed to restore the basic notion of “a written Constitution”
to the United States of America.
The Constitution provides that it may be amended only
by constitutional convention or the action of two thirds of both
the House and the Senate, ratified by at least 38 states. The long-standing
understanding that America is governed by a written constitution
can only be restored by reversing judicial tampering and correcting
the resulting imbalance of power between the three branches of government.
A constitutional amendment on marriage will properly remind the
judges that their role is to adjudicate, not legislate. Abraham
Lincoln said, "The candid citizen must confess that if the
policy of the government upon vital questions affecting the whole
people is to be irrevocably fixed by decisions of the Supreme Court,
. . . the people will have ceased to be their own rulers.”
4. Marriage does not merit constitutional treatment. Congress
and the country have more important things to do.
There have been 27 constitutional amendments, the most recent one
dealing with pay raises for congresspersons. Does marriage, the
very fountain of the family – which is the building block of our
society – merit similar time and attention? Of course. If congressional
pay raises merit constitutional treatment, society’s most fundamental
institution also deserves constitutional recognition. Indeed, the
lawyers, judges and litigants who have worked tirelessly for the
past 20 years to establish a judicially created “constitutional
right” to same-sex marriage have already demonstrated that
marriage is a pressing question of fundamental constitutional concern.
5. Several Senators have said that they “hope” DOMA laws
will be upheld and that amending the Constitution should be a last
resort.”
State and federal Defense of Marriage Acts (or DOMA laws) are almost
certainly unconstitutional under the analysis of Lawrence.
Law professors, advocacy groups and litigants who have asserted
for years that DOMA is unconstitutional now argue that DOMA adequately
protects marriage. But, as Justice Scalia warned in Lawrence,
“Do not believe it.” The reasoning of Lawrence, Justice
Scalia notes, invalidates all marital laws in the country – including
DOMA – so long as “one entertains the belief that principle and
logic” in fact guide “the decisions of this Court.”
Therefore, if the goal is to protect natural marriage, the Constitution
must be amended now to ensure that DOMA itself is not struck
down. Delay will only add chaos and confusion. Waiting, in short,
cannot reverse Lawrence.
6. The FMA is “internally inconsistent” because the first
sentence forbids marriage for same-sex some couples while the second
sentence allows states to recognize alternative forms of same-sex
relationships.
The FMA is not “inconsistent.” The amendment consists of two sentences.
There is no contradiction between them. 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 interpreted
to require that the “legal incidents” of “marriage” be granted to
alternative unions. At most, therefore, it might be argued that
the second sentence is redundant because it repeats what has already
been stated in the first sentence. While this reiteration may be
arguably unnecessary, it is far from contradictory.
The two sentences of the FMA simply protect DOMA laws and uphold
the existing legal definition of marriage consistent with the history,
tradition and practices of the American people. “Marriage” consists
only of a union between a man and a woman. The “legal incidents”
of marriage are retained exclusively for that union.
State legislatures will not be precluded by the FMA from recognizing
other non-marital social relationships – including dependent relationships
between two ageing widows or widowers who live together for economic
and emotional support, an aunt who has a dependent relationships
with a niece or nephew, mutually dependent lifetime friends who
do not share any sexual relationship and (if the people of a state
so decide) same-sex partnerships. But, unlike the law as it now
stands under Lawrence, all such decisions will be made
by the people and their state legislatures acting with full regard
and respect for democratic decisionmaking. The legal recognition
of any of these relationships, furthermore, will necessarily involve
democratic consideration of the fairness (or unfairness) of extending
social status and benefits to one class of claimants (such as same-sex
partners) while excluding other groups (such as partnerships between
two ageing widows or two interdependent lifetime friends) from similar
treatment.
7. Courts will have great difficulty construing and maintaining
the differences between marriage and civil unions.
Nonsense. Courts have long demonstrated their ability to distinguish
between two similar but different legal entities.
Perhaps the best way to explain is by analogy to business law.
The law governing "corporations" is established and understood.
That law, moreover, confers certain advantages upon the various
actors within this particular legal "union:" the shareholders,
the board of directors and management. State legislatures, however,
are quite free to establish other business relationships -- including
partnerships and limited liability partnerships that may share some
of the incidents of "corporate status" (including, in
the case of limited liability partnerships, the protection of the
personal assets of some partners -- much as the personal assets
of corporate shareholders are protected from claims against a corporation).
Does this "sharing" of similar (in some cases, essentially
identical) "incidents" make it legally impossible for
courts to determine whether a corporation is a corporation, a partnership
or a limited liability partnership? Of course not.
The courts merely look at what the legislature says and follow
the law. That is what courts should do. It is what courts have historically
done. The FMA is required, in large measure, precisely because courts
now have expanded their historic role of "exercising judgment"
into the illegitimate role of "making law." It is judge-made
marital law, not the FMA, that poses a serious risk of legal chaos.
8. The FMA will cause a surge in judicial involvement because
of the increased chaos that will surround marriage law.
Not true. Marriage will continue to be the same state-licensed
activity it has always been. Nothing in the FMA changes this; in
fact the FMA sustains “marital homeostasis” (except in Massachusetts,
where the FMA would stop same sex marriages that were forced on
the state by its highest court).
Indeed, the FMA will prevent – not create – legal confusion.
Judicial assertions that same-sex unions are "equal"
to marriage have already raised a host of complex questions that
should be answered by legislative decisionmaking, Without
adoption of the FMA, this now-pending avalanche of difficult questions
will be answered by the courts, not state legislatures. These questions
include a host of important (and honestly debatable) issues in family
law, the law of wills and estates, tax law and numerous other areas.
(For example, in family law, a child born during a marriage is presumed
to be the child of the father – regardless of whether DNA tests
establish the contrary. Will the same presumption be applied to
the child of a same-sex union? The consequences of applying or not
applying this presumption to same-sex unions – let alone the consequences
of abandoning the presumption in cases involving natural marriage
– could be monumental.) Accordingly, the failure of Congress and
the people of America to act -- not the passage of the FMA – will
be the true harbinger of judicial chaos.
9. The FMA will prohibit churches, businesses, and other
groups from sanctioning or granting benefits to same sex couples.
Marriage is a state-licensed activity. For centuries, and increasingly
in recent decades, there have been marriages as well as other unions
not recognized by the state. Nevertheless, in many cases, the non-state-sanctioned
unions have had significant personal or organizational meaning for
the groups or individuals involved. Nothing in the FMA changes this
analysis.
The FMA limits state issuance of marriage licenses to unions between
a man and a woman. The FMA, however, does not restrict
the actions of churches, groups or individuals who wish to engage
in or perform unlicensed (that is, non-state-sanctioned) unions.
The Constitution, after all, provides that “No Title of Nobility
shall be granted by the United States.” But, despite this clear
constitutional pronouncement, the organizations and individuals
who have crowned countless “royalty” at pageants, balls and public
celebrations have never been subjected to legal sanction. The same
is true here. The FMA’s declaration that “[m]arriage in the United
States shall consist only of the union of a man and a woman” will
limit the actions of state and federal governments – but not private
groups and individuals.
Thus, any assertion that the FMA oppresses religious groups and
individuals is pure hyperbole; various business, churches and organizations
have been recognizing alternative forms of "unions" for
some time. These actions may have whatever actual or symbolic meaning
anyone (or any group) wishes to attach to them. A corporation may
choose to grant – or not to grant – certain benefits to same-sex
unions. A church or other organization may do likewise. The FMA
simply will not alter or affect such decisions.
10. The FMA is anti-democratic.
The constitutional amendment process is arguably the most democratic
process in our system of government. Not only does an amendment
have to be proposed by two thirds of both the House and the Senate,
but at least three fourths of the states must ratify -- thus ensuring
that any alteration of the Constitution reflects the will of the
people. The FMA merely ensures that a most basic ethical, social
and moral decision is made by the people of the United States through
their elected representatives. This is hardly anti-democratic.
11. The FMA will violate the civil rights of same sex couples
who wish to marry. The Constitution should not be used to take away
rights from people.
There is not nor has there ever been a civil right to same sex
marriage. You cannot take away a right that does not exist. The
FMA simply protects existing marriage law and preserves the rights
of children to have the optimal chance of being raised by both a
mother and a father. Governments grant benefits to married couples
to assist them in the societal imperative of bearing and successfully
rearing the next generation. Nevertheless, there have always been
unions not recognized by the state and, in many cases, non-state
sanctioned unions have had significant personal meaning for the
individuals involved. The FMA does not change this. Nobody’s rights
are violated by existing marriage laws. Any person in America who
meets the marriage requirements regardless of race, religion, or
sex can pair with someone of the opposite sex and marry. Under the
FMA, same-sex couples can apply for government benefits they deem
important and states will have power to grant what benefits they
wish.
12. The FMA is a political ploy to force Senate members
to declare their position on SSM.
Politicians did not create this issue. The timing of the FMA is
being forced by the proponents of same-sex marriage – who are now
filing suits in other states to obtain recognition of Massachusetts
marriages. It takes time to amend the Constitution, the shortest
time being 100 days for the 26th Amendment and the longest being
202 years (for the 27th and most recent amendment). It is already
past time to try to head off suits that will result in Supreme Court
rulings three to five years from now. Moreover, the people have
a right to know – before the November elections – where their elected
representatives stand on what may prove to be the most controversial
social issue of our time.
13. Who should decide the marriage question?
Whatever the Constitution said (or did not say) about marriage
for the past 215 years, whatever the history, traditions and practices
of the American people confirm (or do not confirm) about the meaning
of marriage, marriage is now in the Constitution. The Founders
did not do it. But the courts have. Without a constitutional
amendment, the judiciary – and not the people – ultimately will
determine what marriage means. If you think the people should decide,
vote yes on the marriage amendment. If you think the courts should
decide this vital question, vote no.
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