The Federal Marriage Amendment (FMA), which would define marriage in the Constitution as "only of the union of a man and a woman," was introduced into the House on May 15. The bill is supported by a diverse bipartisan coalition of organizations and politicians. Backers of the FMA cross racial, cultural, and religious lines with support coming from Jews, Christians, Muslims as well as liberals and conservatives. The bill is sponsored in the House by three Democrats and three Republicans.
However, conservative Christian groups are split on whether to endorse it. Several pro-family organizations such as Family Research Council and Concerned Women for America have expressed dissatisfaction with the FMA, while backers include the Southern Baptist Convention, Focus on the Family, several Catholic dioceses, and the Traditional Values Coalition.
The two-sentence amendment (H.J. 93), drafted last year by the Alliance for Marriage, states that marriage is an exclusively male-female union. If the amendment becomes law, it would restrict state legislatures from using the word marriage to describe same-sex relationships. It would also disable courts from recognizing any same-sex marriage or determining the allocation of marital benefits.
No state currently recognizes same-sex unions as "marriage." Vermont recognizes same-sex "civil unions," while others allow gay and lesbian person to benefit from a partner's insurance. Under the FMA, the authority to decide on marital benefits would remain with each state.
Many conservative groups favor a constitutional amendment defining marriage but say the FMA's definition is too weak. They complain that the amendment still allows state legislatures to extend marital privileges to same-sex relationships and recognize homosexual unions.
"We feel if you are going to go to the trouble to try to amend the U.S. Constitution, which is a very difficult task, that you pass an amendment that would preclude same-sex marriage or any of what we call 'counterfeit marriage' for same-sex couples," said Peter Sprigg, senior director of culture studies for Family Research Council. "It doesn't really protect the institution of marriage from actions of state legislatures that might dilute it."
Targeting the courts
FMA supporters say that an amendment granting complete protection from the state legislatures would never make it into the Constitution.
"[Groups not supporting FMA] say that marriage is so important that it needs to be preserved across the board. We agree, but that's not going to happen politically," says Tom Minnery, Focus on the Family vice president of public policy. "A marriage amendment that prohibits the people of the state from acting would never get wide enough support to pass Congress and be ratified in the states."
Instead, the Alliance for Marriage drafted the FMA to focus on stopping the courts from determining marital status or benefits.
In 1996, the federal Defense of Marriage Act (DOMA) defined marriage as being between one man and one woman in the eyes of the federal government and protected states from being forced to recognize policies of other states regarding same-sex couples.
However, DOMA does not affect what state legislatures or courts can decide in terms of recognizing unions or determining benefits. It protects states but does not limit them. The FMA would add protection against the courts to the strengths of the DOMA. Says Minnery, "So far, the courts have been 100 percent of the problem."
Matt Daniels, executive director of Alliance for Marriage, told CT that the ability for civil courts to affect marriage laws is especially threatening. On May 21 lawyers appealed a Massachusetts court ruling denying marriage to seven same-sex couples. The court had ruled that having and raising children was central to the purpose of marriage.
Lawyers plan to argue in the appeal that civil marriage is a fundamental right, that denying marriage is a violation of equal treatment, and that the state cannot justify exclusion from marriage. If the case is overturned and the couples are given their marriage licenses, Daniels said, it could begin a chain reaction of similar lawsuits across the country.
"Gay groups take the marriage issue out of the hands of the people and to the courts," he says. "This is why we need the Federal Marriage Amendment. If you take it to the people, we win. If you take it to the courts, the gay activists win."
The Massachusetts's Supreme Judicial Court is historically sympathetic to homosexual rights issues, having previously ruled in favor of homosexual groups who sued to march in a St. Patrick's Day parade. The only dissenting judge in the judgment has since retired. (The Supreme Court overturned the ruling.)
"We're going to lose in Massachusetts; it is only a matter of how quickly. The question is whether they can win before we can awaken interest in the amendment," Daniels says.
Minnery said that with the amendment's protection against the courts, threats of same-sex unions and marital benefits will come only from state legislatures. "But that's going to be a very much smaller fight in way fewer states than if the courts were left open to interpret it how they want," he said.
In order for the proposed amendment to become law, it must first be approved by two-thirds of both the House and the Senate and then ratified by three-quarters of the states. The bill has been referred to the House Committee on the Judiciary. Daniels said that an approximate timeline for the bill would see hearings in November or December and a decision in February 2003.
If it does not pass, Minnery says, the only recourse will be to change state constitutions one by one. But either way, conservatives must travel a difficult road to protect the institution of marriage.
"Without an astute political sense of where we are now with this culture, we may not even be able to prevent marriage from being interpreted by the courts," Minnery told CT. "It will be a very difficult fight and a very long fight to get this one through."
Todd Hertz is online assistant editor for Christianity Today.
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