The
right to marry has been a heated debate topic in the United States for over a
decade. Alongside proposed amendments to
ban marriage between races and to make divorce illegal, same-sex marriage,
controversially, has continued to make headlines as a petitioned right. Interestingly, the United State’s
Constitution contains no mention of marriage or morality, enacting the Tenth
Amendment, and pushing power towards the states to decide. In the past, states have recognized marriage
only between a man and a woman. It has
only recently arisen as a prioritized right to expand the rights of citizens to
marry their same sex.
To protect traditional and
fundamental marriage laws, Ronnie Shows first
introduced the Marriage Protection Amendment on May 15, 2002, which died in the
Committee on the Judiciary. Since, this
amendment has been proposed four more times; the last occurring on June 28,
2013 by Tim Heulskamp, which was referred to the Subcommittee on the
Constitution and Civil Justice. This
proposal stated originally, “Constitutional Amendment - Declares that marriage
in the United States shall consist only of the union of a man and a woman. States that
neither this Constitution or 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,” and has been
overtime altered to state, “Constitutional Amendment - Marriage Protection
Amendment - Defines marriage in the United States as consisting only of the
union of a man and a woman. Prohibits
either the U.S. Constitution or the constitution of any state from being
construed to require that marriage or the legal incidents of marriage be
conferred upon any other union,” under the title of Federal Marriage Amendment (B1).
The Federal
Marriage Amendment (FMA)
is, “a proposed amendment to the United States Constitution which would limit marriage in the United States to unions of one man and one
woman. The FMA would also prevent
judicial extension of marriage rights to same-sex or other unmarried heterosexual couples. An amendment to the U.S. Constitution requires
the support of two thirds of each house of Congress and ratification by three
fourths of the states” (B1). Because
civil marriage in the United States is governed by state law, “each state is
free to set the conditions for a valid marriage, subject to limits set by the
state's own constitution and the U.S Constitution. Traditionally, a marriage was considered valid
if the requirements of the marriage law of the state where the marriage took
place were fulfilled. (First Restatement
of Conflicts on Marriage and Legitimacy s.121 (1934))” (B1).
However, because the states hold the power, “a
state can refuse to recognize a marriage if the marriage violates a strong
public policy of the state, even if the marriage was legal in the state where
it was performed. (Restatement (Second)
Of Conflict of Laws § 283(2) (1971))” (B1).
This technical loophole in the rights of the states to govern citizens
leaves room for states to decide whether same-sex marriage would violate such a
public policy. Historically, states, “exercised
this ‘public policy exception’ by refusing to recognize out-of-state polygamous
marriages, underage marriages, incestuous marriages, and interracial marriages”
(B1). Subsequently, these precedents
have served as standard for nearly all same-sex court cases in states that have
secured traditional marriage. These
states have the power to recognize same-sex marriage as illegal, even if the
marriage was performed in a legal state.
This confusion
between the states provides sufficient means for a Constitutional law to be
implemented. Nearly all court cases in
the United States debating the legality of same-sex marriage between states
claim on the basis of due process. However, the Constitution’s Full Faith and
Credit Clause is what, “addresses the duties that states within the United States have to respect
the ‘public acts, records, and judicial proceedings of every other state’”
(B5). The contradicting and hypocritical
powers given to, or taken from, the states maintain ample evidence that the
Constitution needs to be amended. Furthermore,
same-sex marriage is currently one of the most divisive political issues within
the United States. For example, “[i]n
November 2008, Californians passed Proposition 8, a referendum that removed the
right to marry from same-sex couples who had been granted that right by the
courts. This result has been seen by the
same-sex community as deeply degrading. More recently, Iowa and Vermont have legalized
same-sex marriage, the former through judicial interpretation of the state
constitution, the latter through legislation” (B2).
These propositions have only increased
federal confusion upon the topic of same-sex marriage. After voting in favor of traditional
marriage, courts overturned the popular federal vote and legalized same-sex
marriage within the states.
Controversially, the Supremacy Clause in the Constitution proclaims,
“the United States Constitution, federal statutes, and treaties as ‘the supreme
law of the land.’ It provides that these
are the highest form of law in the United States legal system, and mandates
that all state judges must follow federal law when a conflict arises between federal law and either a state constitution or state law of any state”
(B3). The Supreme Court, technically
outlawing each state that disregards legal same-sex marriages from other states
as illegal, has rejected the illegal theory of nullification of federal
law.
Implementing an amendment that secures marriage as only one
legitimate union, one between a man and a woman, would dissipate all federal
and state confusion. Analogous to the
Civil Rights movement, confusion after the Civil War of the rights of
African-Americans led to the Fourteenth and Fifteenth Amendments that explain
in detail the rights of African-Americans within the federal government that
the state governments were required to follow.
If the FMA were to be approved and added to the Amendments, marriage
laws would be simply and straightforwardly stated, without any room for states
to debate between each other. Advocates
of the FMA also argue that, “clergy are always among those entitled to perform
legally binding marriages. Religions may
refuse to marry people who are eligible for state marriage and they may also
agree to marry people who are ineligible for state marriage. But much of the officially sanctioned marrying
currently done in the United States is done on religious premises by religious
personnel. What they are solemnizing
(when there is a license granted by the state) is, however, not only a religious
ritual, but also a public rite of passage, the entry into a privileged civic
status” (B2).
Opponents of the FMA claim a right to marry. Referenced as one of the basic civil rights
of man, same-sex advocates in a case, “Zablocki v. Redhail, recognize[d]
the right to marry as a fundamental right for Fourteenth Amendment purposes,
apparently under the Equal Protection clause; the Court states that ‘the right
to marry is of fundamental importance for all individuals’ and continues with
the observation that ‘the decision to marry has been placed on the same level
of importance as decisions relating to procreation, childbirth, child rearing,
and family relationships;’” or rights given to the states (B2).
The argument for marriage to be considered
as a fundamental right would completely dispel the point of getting married. “If so, the state is not required to offer
marriages at all. It’s only that once it does so, it must do so with an even
hand. The talk of marriage as a ‘fundamental right,’ together with the fact
that most of these decisions mingle equal protection analysis with due process
considerations, suggests, however, that something further is being said… Would
it violate the Constitution if a state decided that it would offer only civil unions
and drop the status of marriage, leaving that for religious and private bodies?”
(B2). What, then, would be the point of
marriage if any citizen of any status could unite with another and receive the
benefits of a civil union?
In conclusion, now is the time to pass such an
amendment as the FMA. To avoid the
violence and harm that other civil rights cases have brought upon the United
States, we must implement an amendment to the Constitution beforehand that
enumerates the specific rights of marriage.
Therefore, it would be of sufficient merit to include the Federal
Marriage Amendment to the Constitution to relieve confusion, contention, and
complication.
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