The laws of the United States have been written to protect the liberty of the people and provide equality to all American citizens, as well as to uphold state’s rights. Only once before has an amendment detoured from this path. The Eighteenth Amendment, which prohibited the distribution and sale of alcohol and was revoked by the Twenty-First Amendment, the only amendment to have ever been repealed. Once again, however, another amendment has been brought before Congress which would deviate from the principles of liberty, equality and state’s rights. This is the Federal Marriage Amendment (FMA), also known as the Federal Marriage Protection Amendment (FMPA), which states:
“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.”
(Allard2, 1)
The Federal Marriage Amendment is a far greater deviation than the Eighteenth Amendment, which only broke with the preservation of state’s rights and personal liberties; this amendment would also represent a statement of inequality. The FMA is not only objectionable because of its break from traditional American law or its lack of a firm legal foundation but also because it attempts to enforce a sectarian religion across the United States. Under these circumstances the Federal Marriage Amendment is a blatant violation of human rights and is a denial of the equality offered in our very constitution; this amendment should not be ratified into our Bill of Rights for such an action would be a step back in our long journey toward becoming an egalitarian society.
The Federal Marriage Amendment violates states rights by removing the power of each state to determine the definition of marriage, as well as the ability to amend their individual constitutions in the future if a reanalysis of marriage is needed. “A common interpretation of the first sentence of the amendment is that no state will be permitted to recognize same-sex marriage.” (Strasser, 389) The second sentence of the amendment is interpreted as saying that the states currently with legislation allowing same-sex marriage or union (i.e. Vermont, Main, Massachusetts, and others) would have those articles invalidated by the overriding federal law (Strasser, 389). Traditionally the federal government has the power to nullify state laws when they contradict national law. An example is when southern states such as Georgia and Alabama instituted Jim Crow laws; these laws were annulled by superseding national laws because they represented a statement of inequality for African Americans. The FMA would be analogous to if the federal government had instituted Jim Crow laws on the national level, in spite of a number of states refusing to institute such laws or already having contradicting legislation. By instituting laws on the national level that would deprive the rights to, or create an undue burden for a minority of individuals contradicts to the direction our legislation has taken. Currently the laws that are prejudiced against homosexuals are seen as constitutionally feasible on the state level, we as American citizens have come to recognize such rash, reactionary stances as going against the overriding direction of American law.
One of the reasons that advocates of the FMA argue that the amendment is in reality protecting the rights of states is that the amendment prevents radical interpretations of the constitution by “activist judges” regarding marriage. Notable conservative, political activist, and constitutional law expert Phyllis Schafly has said that “they [activist judges] are influencing the culture of the country with decisions that have no basis in the U.S. Constitution” (Walsh, 1). However, this statement begs the question considering that in order to supposedly halt the agenda of “activist judges” from changing individual state laws one must first outright remove the right from the state. This same paradox exists within the amendment itself.
“Juxtaposed against this coherent, thematic constitutional backdrop, the proposed FMA is incongruent because it undermines the embedded constitutional themes of state power, liberty, and equality. For example, the FMA contradicts the theme of state power by usurping the definition of marriage, a matter historically reserved to the states under the traditional notions of federalism and by removing from the states the power to constitutionalize equal benefits to same-sex and opposite-sex couples.”
(Dodson, 238)
This contradiction of constitutional themes extends into a matter of equality, where it would in effect create a national system that would deprive some members of our society equal benefits and status. The amendment is singling out same-sex couples who wish to have the same legal and social position as opposite-sex couples by denying that same-sex couples are legally equal to opposite-sex couples (Dodson, 239). Such an amendment would be arbitrary and discriminatory to say that same-sex couples have less of a right to be seen as a family when what can be considered a “family” is far different today than what is was fifty years ago and is still constantly evolving. Gone are the days of the nuclear family; today we live in a world filled with step-parents, half-siblings, and single parents. With todays divorce rates it is not uncommon to meet someone who has two sets of parents and multiple unrelated siblings. The “family unit” no longer adheres to its traditional role which makes it seem unclear as to why proponents of the FMA feel that they are protecting marriage and the family simply by singling out same-sex couples.
The American Constitution has a long history of striving toward equality through its amendments to the US Constitution; for example granting the right to vote to men regardless of race in 1870 (Fifteenth Amendment) and granting the right to vote to citizens regardless or sex in 1920 (Nineteenth Amendment). All of the amendments thus far have been in an effort to create a society based in equality, but the proposed FMA would represent the opposite. As it would be a step back from the ideal set forth in the preamble to the Declaration of Independence: “That all men are created equal, that they are endowed by their creator with certain unalienable rights, that among these are Life, Liberty, and the pursuit of Happiness.” Because the FMA is disadvantaging same-sex couples it is going against the theme of equality in our constitution by depriving those couples of basic privileges such as hospital visitation, medical decision-making, spousal benefits, and a host of other rights afforded to opposite-sex couples (Strasser, 402). It is true that many of these rights are not completely lost; they can be gained through various legal means. A partner in a same-sex couple can be afforded hospital visitation rights and limited decision making by being granted power of attorney, but in emergency situations this may be difficult to obtain. Such legal hoops place an undue burden on same-sex couples compared to opposite-sex couples who do not have to go through all the proper legal channels and documentation just to obtain such simple privileges as being able to visit a dying loved one in the hospital.
Personal liberty is the third theme of the US Constitution that the FMA ignores. Personal liberties are the choices individuals are allowed to make that do not infringe upon the rights of others. The last foray into limiting an individual’s general freedom was the Eighteenth Amendment. As is well known Prohibition was a social disaster, but it started out with the idea that such an amendment was in the best interest of the American people (Dodson, 239). In the past amendments have been created to deal with imminent threats, or to address the common fears of the public. These amendments have dealt with problems such as titles of nobility, letters of marque and reprisal, forced quartering of troops, and slavery. These amendments were very effective in dealing with these proposed threats, whether they were imminent or not (Wardl, 449). However, what these amendments have in common, and where they differ from the FMA, is that each of these affirms personal liberties. The FMA, on the other hand, would remove the rights and freedoms from some individuals based on individual nature and from a derived importance from the word “marriage”.
The definition of marriage in this amendment can come from two sources: one that is a secular worldview or one that enforces a religious worldview. The former is a claim backed by statistical data that is often not delved into in great detail, meaning that the data is presented without giving it the context which determines how it should be interpreted. Such statistics promoted by endorsers of the FMA follow the general line of thought that:
“The constitutions of the majority of nations of the world (most of which have been adopted in the past sixty years and reflect modern social conditions and dangers) contain express, explicit protection for family and marriage relations in the text of their constitutions; many of them expressly define marriage as the union of a man and a woman.”
(Wardl, 453)
The main problem with these statistics lies in the wording that they use. The italicized portions are worded in such a way that while they are true, they are not true in the context in which they are used. For instance the social conditions and dangers that are reflected in various countries constitutions may have been adapted to deal with a number of issues unrelated to same-sex marriage, which is a relatively new “danger” (in respect to Wardl’s terms). The constitutions used by Wardl to justify her claim that “many of them expressively define marriage” do not in fact use concrete definitions in the wording of their amendments. Wardl claims that as much as 40-57% of the constitutions of sovereign nations explicitly define marriage as a heterosexual relationship (Wardl, 454). However, many constitutions used by Wardl used to illustrate her point, such as Belarus, use language such as “women and men shall have the right to enter into marriage on a voluntary basis to start a family.” This is a statement that prescribes to social norms, but does not define marriage as between a man and a woman. There is no language saying that marriage is only between a man and a woman, nor is there language forbidding the concept of same-sex marriage. In reality very few countries have outright banned same-sex marriage as the FMA seeks to do, but many countries have allowed same-sex marriage or union. As many as eleven European nations currently allow civil unions or marriage between same-sex couples dating as far back 1989 (Denmark), not to mention other nations like Canada and New Zealand which have or are adapting their legislation.
The other side to the argument for defining marriage comes from the overriding religious view of United States. It comes to no surprise that western culture is largely influenced by Judeo-Christian religion, or that in spite of the separation of church and state it still has a heavy influence upon legislation and politics in this country. However, one sees see much of the language that represents religiously-backed ideas becoming more cleverly written to hide this fact. Rarely anymore are we faced with blatant references to religion in our legislation, as it was once written. Contrary to this the religious roots of the FMA can be easily exposed. “The Founders formally affirmed their belief in…immutable God given moral rules—a natural law—that the laws of men are bound to follow. Do Americans believe that the Creator endowed us with an unalienable right to same-sex marriage? Obviously not” (Allard1, 3).
The concept of marriage in western culture derives its nature from religion; the two are inseparably intertwined. For instance while marriage is a binding legal contract, the majority of weddings take place in the traditional form: in a church. This is the most physical link between our concept of marriage and religion. However that does not mean that there is not a secular definition of marriage available, but such a definition cannot be used for the purposes of the FMA. Only the most fundamental definition of marriage can be used—it is a legal manifestation of a relationship between two individuals—if the courts are to use a non-ideological approach to determining the constitutional right to marry (Pull, 23).
The Federal Marriage Amendment is at its very core an attack on one specific group of people with the intent to deprive them of the civil liberties and equality that would normally be afforded to all American citizens. The FMA is in effect conveying on a national scale that same-sex couples are less than equal to opposite-sex couples thereby denying them the benefits of being considered a valid couple both legally and socially. Beyond this the amendment represents a piece of legislation that would supersede the traditional territory of state’s rights regarding defining marriage, as well as invalidate existing laws. The FMA further distances itself from all other amendments (save the Eighteenth Amendment) by defying the constitutional themes of liberty, equality, and state’s rights, the three main concepts reinforced in the other twenty-seven amendments. In his article “Constitutional Thematics and the Peculiar Federal Marriage Amendment” Scott Dodson states:
“There is something quite remarkable about this FMA. It takes power away from the states. Well that is no big deal; the Constitution takes many powers away from the states. But the FMA takes power away from the stated derogation of individual liberty and equality. This is a very peculiar power shift. Indeed, I can find nothing else like it in the Constitution.”
(Dodson, 234)
The FMA cannot be ratified into the constitution under these circumstances, it violates too many principles that the American system of law has fought to uphold. In the background of this amendment are the shadows of half conceived notions of legality and thinly veiled religious references that have garnered the majority of the amendment’s support. The FMA is a step back from the ideals of equality, liberty, and justice for all. For as many years as we have been a country we have been striving to seize the standard set before us by our forefathers who had the vision to see that one day all men will not only be created equal, but all men shall be seen as equals under the law.
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