News Articles

Marriage amendment Q&A: How we got to this point

NASHVILLE, Tenn. (BP)–President Bush’s announcement Feb. 24 in support of a constitutional marriage amendment came following months of news related to same-sex “marriage.” The following “Q&A” summarizes recent events and seeks to answer common questions:

— Why did President Bush make this announcement now?

Bush believes that events in San Francisco and Massachusetts are threatening the national definition of marriage. In his words, “attempts to redefine marriage in a single state or city could have serious consequences throughout the country.”

— What’s going on in San Francisco?

The city has begun issuing marriage licenses to same-sex couples, despite the fact that state law explicitly bans such unions. More than 3,000 homosexual couples have received marriage licenses from the city since Feb. 12, when the first license was granted. Pro-family groups have sued the city, attempting to have the licenses declared invalid. Meanwhile, the city has sued the state, seeking to overturn California’s ban against same-sex “marriage.”

— What’s going on in Massachusetts?

In November the state’s highest court, which is called the Supreme Judicial Court, issued a landmark ruling stating that same-sex couples could not be denied marriage licenses under the Massachusetts constitution. The court then stayed its decision for 180 days, meaning that its ruling will take effect in mid-May — most experts say May 17 — and Massachusetts could become the first state officially to recognize same-sex “marriages.”

— Can’t it be appealed to the U.S. Supreme Court?

No. Because the court based its decision on the Massachusetts constitution and not the U.S. Constitution, legal experts say it cannot be appealed immediately to the U.S. Supreme Court.

— So, what can be done?

Legislators in Massachusetts are debating a state constitutional amendment that would ban same-sex “marriage.” However, because of state law the amendment would have to pass two consecutive sessions — which are two years each in Massachusetts — before it goes to the voters, which would be 2006 at the earliest. But legislators in the Bay State are divided. They met once and failed to pass an amendment and are scheduled to meet again March 11.

— So, can anything be done before 2006?

Massachusetts politicians aren’t sure. One option, as reported in The Boston Globe, involves the governor issuing an executive order telling officials not to grant marriage licenses to same-sex couples. But if nothing is done, same-sex “marriage” in the state apparently will become legal in May.

— Is this the first time a state court has ruled for same-sex “marriage”?

No, although it’s the first time that a state supreme court has gone this far in its decision. In the 1990s state courts in Hawaii and Alaska issued rulings for same-sex “marriage,” although voters in both states passed marriage amendments, enshrining the traditional definition of marriage in their respective state constitutions. The ruling in Hawaii led to the passage of the Federal Defense of Marriage Act.

— What’s the Defense of Marriage Act?

Passed in 1996 and signed by President Clinton, the act — known also as DOMA — does two things. First, it says that the federal government will not recognize same-sex “marriages” from any state. Second, it gives states the option of passing their own “mini-DOMAs,” therefore not recognizing a same-sex “marriage” from another state. Thirty-eight states have passed a defense of marriage act. Massachusetts is one of the 12 states without one.

— So, what’s the need for a federal constitutional amendment?

Although the legal profession is divided on this issue, many scholars and lawyers believe that the Federal Defense of Marriage Act could be struck down in federal court on the grounds that it violates the U.S. Constitution’s Full Faith and Credit Clause. That clause states that “full faith and credit” must be given in each state to the “public acts, records, and judicial proceedings” of every other state. If the courts equate marriage licenses with “public acts” and “records,” then it could be struck down. Bush alluded to this legal problem in his announcement.

— Could same-sex “marriage” become national law?

Yes. Same-sex “marriage” proponents have been open about their legal strategy. Once Massachusetts officially legalizes same-sex “marriage,” a couple can acquire a marriage license in the Bay State, move out of state and sue in federal court to have the license recognized in, say, Pennsylvania. This is where the full faith and credit clause applies.

— Has a constitutional amendment been introduced in Congress?

Yes. Called the Federal Marriage Amendment, it 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, nor State or Federal law, shall be construed to require that marital status or the legal incidents thereof be conferred upon unmarried couples or groups.”

— Does Bush support this version of the amendment?

He hasn’t said. During his Feb. 24 announcement, Bush said he supports an amendment that would protect the traditional definition of marriage but would leave Vermont-type civil unions up to the states. Supporters of the Federal Marriage Amendment say that their amendment meets this standard.

— What’s a civil union?

Legal only in Vermont, civil unions give same-sex couples most of the benefits of marriage without using the word “marriage.” Sometimes they’re also called “domestic partnerships.” Some pro-family leaders call them “faux marriages.”

— Why doesn’t Bush support an amendment banning civil unions?

He didn’t say, although it could be because he doesn’t believe it’s politically feasible. While governor of Texas, he opposed civil unions there.

— Where do the other presidential candidates stand on an amendment?

The two leading Democrats, John Kerry and John Edwards, say they oppose an amendment but also oppose same-sex “marriage.” Kerry, a Senator, has pledged to vote against the amendment if it reaches the Senate floor. In 1996 he was one of 14 senators to vote against the Defense of Marriage Act.

— How does an amendment pass?

Two-thirds of the members of the House of Representatives (290) and Senate (67) must first pass it. Then, it must be ratified by three-fourths (38) of the states.

— What do polls show on this issue?

Polls show that Americans oppose same-sex “marriage” by a margin of 2-to-1. Most polls have opposition at more than 60 percent. Support for an amendment is less and has been around 55 percent in some polls.
For more information on the debate over same-sex “marriage,” visit BP’s story collection at:

    About the Author

  • Michael Foust