Against the Federal Marriage Amendment
The word marriage means many things to many different people. To some people marriage is a religious ceremony, and should remain a religious union, without any interaction by the government. For others marriage is a legal contract, which should benefit both parties involved in the marriage. According Wikipedia.com, most people define marriage as “(1) the state of being united to a person of the opposite sex as a husband or wife in a consensual and contractual relationship recognized by law (2) the state of being united to a person of the same sex in a relationship like that of the traditional relationship.” Not only has the type of contract marriage is become so controversial, but also the idea of who exactly is allowed to be married is an unresolved issue. Due to so many conflicting views on marriage, some people have wanted the government to define the word marriage, while others feel that it is not in the government’s job description to do so. As a result the Federal government did decide to define it with the proposition of the marriage amendment. What the marriage amendment states is that “Marriage in the United States shall consist only of the union of a man and woman. Neither constitution or the constitution of any state, nor state or federal law, shall be construed to require that marital status or the logical incidents thereof be conferred upon unmarried couples or groups.” However despite efforts by the government to solve matters/issues of marriage, more problems in fact come out of this. The marriage amendment should not be in motion because it goes against the very idea of federalism, takes away civil rights, and also takes power away from the courts also.
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. gets involved, mass amounts of people for and against same sex marriage will be unhappy with whichever way it is ruled.
Carpenter, Dale. “The Federal Marriage Amendment: Unnecessary, Anti-Federalist, Anti-
Democratic.” Policy Analysis. Cato Institute. June 2006. [1-11]
"Federal Marriage Amendment." Wikipedia, The Free Encyclopedia. 11 Dec 2008, 04:17 UTC.
19 Dec 2008.
Mr. Chief Justice Warren. “Loving ET UX. v. Virginia .” Supreme Court Of The United
States. June 1968.
Paul, Ron. “The Federal Marriage Amendment Is a Very Bad Idea.” Ron Paul Archives, 2004
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In an effort to breathe new life into legislation to protect marriage nationwide, the ranking Republican in the House Judiciary Committee, Lamar Smith of Texas, and his legal team have filed two motions in defense of the 1996 Defense of Marriage Act.
The motions, filed Tuesday, argue that the act has been left vulnerable to legal challenge because "the [Department of Justice]'s current DOMA defense, which happens to fit the current administration's policy preferences, is really no defense at all."
DOMA, enacted in 1996 under the Clinton administration, defines marriage as "a legal union between one man and one woman as husband and wife" and the word "spouse" as "a person of the opposite sex who is a husband or a wife" for the benefit of federal laws for items such as federal employee benefits. The act also re-establishes states' right to define marriage in their own terms without having to defer to other state rulings.
DOMA was challenged and declared unconstitutional in two lawsuits. In The Commonwealth of Massachusetts v. the U.S. Department of Health and Human Service. Judge Joseph L. Tauro of the Massachusetts District Court issued a ruling denying a USDHHS motion to dismiss the state's lawsuit, proclaiming that DOMA violates the 5th and 10th Amendments. In companion case Gill v. Office of Personnel Management. a similar ruling was given.
Both rulings have since been appealed, but the appeals have been sitting idly for over two months, complained Smith and the attorneys representing him.
Dale Schowengerdt, legal counsel with the Alliance Defense Fund, further decries how DOMA is being under represented by the DOJ.
In its motion Tuesday, ADF asserted, "The DOJ's practical abdication of its own proven legal arguments, plus its ambivalence on whether it will even appeal, warrants intervention to ensure that widely-supported Congressional legislation like DOMA receives a fair and vigorous defense."
"If the Obama administration won't defend marriage, we are ready and willing to do so," Schowengerdt added.
According to Pacific Justice Institute Chief Counsel Kevin Snider, Smith and ADF will have to demonstrate "an interest in the motion's outcome that is unique" in order for the motions to be successful.
"It is usually to protect interests that are being under represented," he added.
Snider also highlighted how some suggest that the attorney general and DOJ may be ambivalent toward the act because "President Obama has articulated some displeasure in DOMA."
Though opposed to the federal marriage act, the Justice Department filed a motion last year to dismiss a gay couple's lawsuit against DOMA. Obama explained at the time that he had a duty to uphold existing law.
In the same statement, the president also reiterated his commitment to reverse the act. His administration has stated that it "does not support DOMA as a matter of policy, believes that it is discriminatory, and supports its repeal."
Despite the "displeasure," Snider said he hopes that the attorney general will continue to "defend the law fully and vigorously, even the laws they don't believe in."
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Federal Regulation of Marriage: A Study in Contradictions
With laws for and against same-sex marriage becoming so prevalent on the national scene in recent years, there has been much confusion, and on the part of congress, dictation on morals as to what constitutes “marriage” for purposes of federal law. Many state and federal regulations rely on a State definition of marriage for purposes of conferring rights and benefits to citizens. As promulgated, these regulations have a long-standing constitutional and jurisprudential basis. Such regulations were enacted to protect the spouses of accident victims, veterans, employees, and retirees. Congress, however, in enacting a federal definition of marriage in contradiction of these regulations, has created an ambiguity that threatens the validity of regulations that define marriage or spouse. Because the regulations, as they exist, serve to protect a greater number of citizens, any contradictions should be resolved in favor of the language as it exists and against any attempts to constrain the definitions of marriage or spouse.
There are several examples in the Code of Federal Regulations where state law is used to define marriage. In applying Treasury Regulations, “whether… an individual is married is… to be determined by the law of the State of the marital domicile” (Dunn v. Commissioner, 1978, p. 366). “Spouse” is defined pursuant to state law for purposes of federal employee benefits (Code of Federal Regulations, Title 5, section 843.102). Social Security regulations with respect to survivor and death benefits state that an applicant “is the wife, husband widow or widower… if the courts of the State… [of which the deceased was a resident]… would find such an applicant and such insured individual were validly married” (Code of Federal Regulations, Title 42, section 416(h)(1)(A)(i)). For the purposes of the Department of Veterans of Affairs, marriage “means a marriage valid under the law of the place.
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The House Republican leadership has stepped in to defend the statute, hiring former Bush administration Solicitor General Paul Clement to do the job. About half of the oral argument will focus on whether Congress has legal standing to defend the law in court. And because the administration agrees with Congress that it does have standing, the Supreme Court has appointed a private lawyer to argue that Congress does not.
Those defending DOMA have been strangely unwilling to make their arguments outside of the court. House Speaker John Boehner, R-Ohio, declined to be interviewed for this article, as did Clement and leading House members who voted for the law. Even Sen. Orrin Hatch, R-Utah, who filed a friend of the court brief supporting DOMA, was unavailable for an interview. The primary sponsor of the bill, former Rep. Bob Barr, R-Ga. now retired, has changed his mind and now opposes the law. President Clinton, who signed DOMA into law, has also reversed course.
Rep. Steve King, R-Iowa, however, is an outspoken DOMA supporter. Equal protection, he says, means "equal protection for a man and woman to be able to get married to each other," because "that's been the definition of marriage for thousands of years."
And as for Edie Windsor: She simply "wasn't married in the eyes of the United States Congress, according to DOMA." Under our system of federal and state shared power, King says, states are free to recognize same-sex marriages, and the federal government is free to not to recognize those marriages.
Brigham Young University Law School professor Lynn Wardle puts it this way: "Since the Constitution was drafted in 1787, it's been the federal government that has had the authority to define who is eligible for federal programs and benefits."
Wardle, who testified in support of DOMA in 1996, notes that at the time, Hawaii seemed poised to become the first state to legalize same-sex marriage, "and Congress said nope, there's a very clear consensus on what marriage is. It's the union of a man and a woman."
The House leadership, in its legal brief, makes similar arguments in support of DOMA. In the face of state and public debate over same-sex marriage rights, the brief says, the federal government had good reason to "retain the traditional definition" of marriage as "the uniform rule for federal-law purposes."
Like proponents of California's ban on same-sex marriage, the brief also highlights the reproductive ability of opposite-sex couples, arguing that "the core purpose and defining characteristic of the institution of marriage always has been the creation of a social structure to deal with the inherently procreative nature of the male-female relationship." This inherent difference between same-sex and opposite-sex couples is just one of the rational justifications for their unequal treatment under federal law, according to the brief.
What To Know About the Federal Defense of Marriage Act (DOMA)
The Defense of Marriage Act, sometimes shortened to DOMA, is a federal law in the United States which was signed into the legislature by former President Bill Clinton on September 21, 1996. In the Federal Defense of Marriage Act 1996, the federal government explicitly defines marriage to be a legal union between a man and a woman.
Under the Federal Defense of Marriage Act 1996, no American state or political subdivision within the United States is required to recognize a marriage within a same-sex relationship that was set in another state. The Federal Defense of Marriage Act 1996 passed both the House and Senate with a large majority. Section 3 of the Defense of Marriage act prevents the federal government from acknowledging the legal validity of same-sex marriages. However, this section has been found to be unconstitutional in a California bankruptcy case, two Massachusetts cases, and by President Obama’s administration. These rulings are still under appeal.
Social Background of the Federal Defense of Marriage Act 1996
When the Federal Defense of Marriage Act 1996 was first passed, it was thought that Hawaii and potentially other states would be quick to legalize same-sex marriage, either by judicial interpretation or legislation of either the federal or state constitution. Challengers of such recognition worried that other states would then be forced to recognize the validity of these marriages under the authority of the Full Faith & Credit Clause found in the United States Constitution.
Section 2 of the Federal Defense of Marriage Act 1996
According to the Report from the House of Representatives on the Federal Defense of Marriage Act 1996, Section 2, which are the Powers reserved for the states, of the act was written with the intention of protecting the right of the individual States to create their own public policies in terms of the legal recognition of gay marriages and same sex unions without having any federal constitutional implications that could possibly modify the recognition by one State of the right for same sex couples to obtain marriage licenses.
This section explicitly provides that no individual State will be required to agree to full faith and to recognize to a marriage license which was issued by another State if it is regarding to a relationship between homosexual couples. This basically means that the law upholds the power of each individual state to make the state’s own decision regarding whether the state will reject or accept any same-sex marriages that are created in other states or jurisdictions.
Section 3 of the Federal Defense of Marriage Act 1996
Section 3, or the definition of marriage, of the law is the portion of the act that legally defines a marriage in terms of federal uses as the union explicitly of a woman and a man. However, this portion of the act was deemed unconstitutional in July 2010 by a federal district court judge. This decision was then appealed three months later. On February 23, 2011, the Attorney General Eric Holder publically announced that the United States Justice Department would no longer act as the legal defense of the Section 3 of the Federal Defense Marriage Act at the instruction of President Barack Obama, who had decided that Section 3 of the Federal Defense Marriage act was unconstitutional.
Despite this, Congress may possibly choose to defend the law in a courtroom instead of through the administration. March 4, 2011, John Boehner (the Speaker of the House) announced that he was taking action in order to defend Section 3 of the Federal Defense of Marriage Act 1996 on behalf of the United States Department of Justice. Furthermore, the administration wishes to enforce the Federal Defense of Marriage Act 1996 until and unless Congress legally repeals Section 3 of the act or the judicial branch places a definitive verdict against the constitutionality of the section.
Enactment of the Federal Defense of Marriage Act 1996
In the 1993 Hawaiian Supreme Court case Baehr v. Miike, the court ruled that the state of Hawaii must show a strong and compelling interest behind prohibiting same-sex marriage within the state. This legal action prompted great concern among various opponents of same-sex marriage regarding the possibility that same-sex marriage could become legal in Hawaii resulting in other states having to recognize those marriages as valid. The enactment of the Federal Defense of Marriage Act 1996 was done in order to free individual states from any sort of obligation in recognizing marriages of homosexual couples in other states.
The Defense of Marriage Act 1996 was authored by Georgia Representative Bob Barr, who was at the time a Republican representative. He then introduced the bill to the House on May 7, 1996. The Congressional sponsors of the bill stated that the bill worked to amend the United States Code in order to explicitly state what has been implied and understood for over 200 years under federal law. This fact was that a marriage is only the legal union of a woman and man as wife and husband, and that a spouse is a member of the opposite sex.
The bill’s legislative history declares authority to endorse the law under Article IV Section 1 of the Constitution, which gives Congress the power to define the full effect of the credit and full faith each state must give to other states' acts. Supporters made clear their intent to regularize heterosexual marriage specifically on as federal level, while allowing other states to decide individually whether to acknowledge same-sex unions granted from other states.
The Republican Party platform in 1996 endorsed the Federal Defense of Marriage Act, making references only to Section 2 of the Act. They felt that anti-discrimination laws should not be distorted so heavily in order to cover sexual preference. Furthermore, the platform also endorsed the Federal Defense of Marriage Act and its ability to prevent states from being legally forced to recognize homosexual unions. The platform of the Democratic Party in 1996 did not mention the Defense of Marriage Act or marriage in general.
In an interview in June 1996 in The Advocate, the gay and lesbian magazine, Former President Clinton said that he was opposed to same-sex marriage as he felt that marriage was an institution reserved for the union of a woman and a man. He did not revisit or mention the stance in his autobiography written in 2004. As time progressed, former President Clinton's personal views regarding same-sex marriage slowly shifted. In July 2009, Clinton said that he placed his support in individuals doing what they feel they want to do and that others should not stop gay marriage because of it. He also showed support for gay marriage but felt it should not be a federal question, but rather all states should be in support of it.
The bill for the Federal Defense of Marriage Act moved through Congress on a fast track and found overwhelming approval in both the House and Senate, which were both Republican-controlled. The bill passed with a vote in the Senate of 85–14 and a vote in the House of Representatives of 342–67. On September 21, 1996, the act was signed into legislation by President Bill Clinton.
Recognition of Gay Marriage In Response of the Defense of Marriage Act
Since the enactment of Federal Defense of Marriage Act 1996, many states have allotted licenses for same-sex marriages. These states include the District of Columbia, New York, Massachusetts, New Hampshire, California, Connecticut, Iowa, and Vermont.
Maryland and New Mexico recognize the homosexual marriages set from other jurisdictions. California, Illinois, Hawaii, New Jersey, and Nevada also recognize such a marriage as a domestic partnership or civil union.
Certain states recognize civil unions in order to represent homosexual relationships, and make these relationships equivalent to marriage. Other states such as Nevada have domestic partnerships in order to grant same-sex relationships some legal status and benefits that the state normally places on married couples.
A majority of the states have very restricted recognition of marriage limited to one woman to one man. Up until April 2009, 29 states in the United States have created constitutional amendments that define marriage as the union of a woman and a man, while another 13 states have set up statutory bans, that approved a gay marriage law that was first repealed by referendum in the general elections of 2009.
Later Politics of the Federal Defense of Marriage Act 1996
The Republican Party platform in 2000 endorsed the Defense of Marriage Act in overall terms but presented a concern about potential judicial action. The party continued to hold the stance that federal law should not force other states to recognize other arrangements beside one woman and one man as marriages. The same year, the Democratic Party platform did not mention the Defense of Marriage Act or marriage within this context.
In 2008, Congressman Barr publicly apologized for sponsoring the Defense of Marriage Act and stated that the law should be repealed on the basis that the act violated the principles of federalism.
Full Text of the Federal Defense of Marriage Act 1996
[[Page 110 STAT. 2419]]
Public Law 104-199
To define and protect the institution of marriage. <<NOTE: Sept. 21,
1996 - [H.R. 3396]>>
Be it enacted by the Senate and House of Representatives of the
United States of America in Congress assembled, <<NOTE: Defense of
SECTION 1. <<NOTE: 1 USC 1 note.>> SHORT TITLE.
This Act may be cited as the ``Defense of Marriage Act''.
SEC. 2. POWERS RESERVED TO THE STATES.
(a) In General.--Chapter 115 of title 28, United States Code, is
amended by adding after section 1738B the following:
``Sec. 1738C. Certain acts, records, and proceedings and the effect
``No State, territory, or possession of the United States, or Indian
tribe, shall be required to give effect to any public act, record, or
judicial proceeding of any other State, territory, possession, or tribe
respecting a relationship between persons of the same sex that is
treated as a marriage under the laws of such other State, territory,
possession, or tribe, or a right or claim arising from such
(b) Clerical Amendment.--The table of sections at the beginning of
chapter 115 of title 28, United States Code, is amended by inserting
after the item relating to section 1738B the following new item:
``1738C. Certain acts, records, and proceedings and the effect
SEC. 3. DEFINITION OF MARRIAGE.
(a) In General.--Chapter 1 of title 1, United States Code, is
amended by adding at the end the following:
``Sec. 7. Definition of `marriage' and `spouse'
``In determining the meaning of any Act of Congress, or of any
ruling, regulation, or interpretation of the various administrative
bureaus and agencies of the United States, the word `marriage' means
only a legal union between one man and one woman as husband and wife,
and the word `spouse' refers only to a person of the opposite sex who is
a husband or a wife.''.
[[Page 110 STAT. 2420]]
(b) Clerical Amendment.--The table of sections at the beginning of
chapter 1 of title 1, United States Code, is amended by inserting after
the item relating to section 6 the following new item:
``7. Definition of `marriage' and `spouse'.''.
Approved September 21, 1996.
LEGISLATIVE HISTORY--H.R. 3396:
HOUSE REPORTS: No. 104-664 (Comm. on the Judiciary).
CONGRESSIONAL RECORD, Vol. 142 (1996):
July 11, 12, considered and passed House.
Sept. 10, considered and passed Senate.
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