Federal Marriage Amendment
In 1996 as a reaction to a state level judicial ruling prohibiting same-sex couples from marrying that may violate Hawaii's constitutional equal protection clause (Baehr v. Miike, 80 Hawai`i 341), Congress passed the Defense of Marriage Act (DOMA), section 3 of which defined marriage as a legal union of one man and one woman for the purpose of interpreting federal law.
DOMA section 3 was struck down by the U.S. Supreme Court in United States v. Windsor on June 26, 2013 and repealed by the Respect for Marriage Act on December 13, 2022.
The Supreme Court struck down a 1992 Colorado constitutional amendment that barred legislative and judicial remedies to protect homosexuals from discrimination solely on the basis of their sexual orientation in Romer v. Evans.
Two days later the Ninth Circuit dissolved its stay of the district court's ruling, allowing same-sex marriage to resume in California.
The original proposed Federal Marriage Amendment was written by the Alliance for Marriage under Matthew Daniels with the assistance of former Solicitor General and failed Supreme Court nominee Judge Robert Bork, Professor Robert P. George of Princeton University, and Professor Gerard V. Bradley of Notre Dame Law School.
[34] In 2003, the White House declined to take a stand on the amendment, although Press Secretary Ari Fleischer relayed that President George W. Bush believed that marriage was between a man and a woman.
"[36] On February 24, after the same Massachusetts court reiterated that it was insisting on marriage and that civil unions were insufficient, Bush expressed support for this amendment for the first time.
[37] In August, Vice President Dick Cheney neither endorsed nor condemned the FMA, arguing that same-sex marriage is an issue for the states to decide.
[39] 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".
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.
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.
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.
[48] 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."
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.
The two states that Bush did not win, Michigan and Oregon, still passed amendments limiting official recognition of marriage to one man one woman unions.
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.
"That conservatives would contemplate so striking a repudiation of federalism," Rauch wrote, "is a sign of the panic that same-sex marriage inspires on the right.
"[52] Furthermore, constitutionally defining marriage would have reversed the choices already made in states and territories including Massachusetts, Vermont, Connecticut, New Hampshire, New York, Iowa, and the District of Columbia.
It is argued that the 2003 version of the FMA would have severely affected the ability of heterosexual unmarried couples to seek some degree of legal protection and/or provisions.
[53] Opponents of the FMA argue that it may complicate efforts to enforce laws against domestic abuse in heterosexual relationships involving unmarried couples.
It was claimed that neither federal nor state courts were likely to order same-sex marriage under the traditional interpretation of the Constitution's Full Faith and Credit Clause.
CWA preferred the Institution of Marriage Amendment crafted by Home School Legal Defense Association president Michael Farris.
However, on February 7, 2012, a federal appeals court in a 2-to-1 decision threw out California's voter-approved restriction on same-sex marriage (Proposition 8) saying that it violated the Equal Protection clause of the U.S.
[citation needed] FMA proponents argued that opposite-sex marriage has been given special legal protections, as the basis for child-rearing, and to legitimize lines of inheritance.
On April 2, 2014, the Alabama House of Representatives adopted a joint resolution calling for an Article V convention to draft an amendment to the federal Constitution to define marriage as the union of only one man and only one woman in all jurisdictions of the United States.
A Gallup poll conducted in May 2014 found that 55% of Americans support allowing marriage for same-sex couples, the largest percentage ever measured by the organization.
A 2012 Fox News poll found that 38% of American voters support a constitutional amendment banning same-sex marriage, while 53% oppose.
In May 2006, a Gallup poll found that 50% of Americans would favor amending the federal Constitution to ban same-sex marriage, while 47% were opposed, and 3% were undecided or did not respond.
[66] An ABC News poll that year found that 42% of Americans supported amending the U.S. Constitution, banning same-sex marriage.
