After four days of contentious debate, Senate Democrats blocked action on the Federal Marriage Amendment (FMA)(S. J. Res. 40). On July 14, a GOP effort to invoke cloture on the motion to proceed to consideration of the amendment failed, 48-50, 12 votes short of the 60 necessary to limit debate. A two-thirds majority, or 67 votes in the Senate, is required to approve an amendment to the Constitution. The Senate Judiciary Committee held a number of hearings on the issue of same-sex marriage earlier this year (see The Source, 6/25/04, 3/26/04, and 3/5/04).
Sponsored by Sen. Wayne Allard (R-CO), the FMA states, “Marriage in the United States shall consist 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.”
Sen. Kay Bailey Hutchison (R-TX) expressed her hope that the Senate would have a civilized debate on same-sex marriage, stating, “This is not about being anti-homosexual. Not at all. I think everyone believes gays and lesbians should have the ability to lead their lives as they choose, as should all consenting adults. But we don’t want to tear down traditional marriage and the American family. We need to protect traditional marriage. We should not allow some States to impose their definition of marriage on other States. States must have the right to accept or reject anything that has not been demonstrated [as] the will of the people through their representatives.”
Explaining that a constitutional amendment is not necessary, Sen. Dianne Feinstein (D-CA) stated, “The courts have long held that no State can be forced to recognize a marriage that offends a deeply held public policy of that State. States, as a result, have frequently and constitutionally refused to recognize marriages from other States that differ from their public policy. Polygamous marriages, for example, even if sanctioned by another State, have consistently been rejected. Marriages between immediate family members have also been rejected by States, even if those marriages are accepted in other parts of the country. In no case that I know of has the full faith and credit clause of the U.S. Constitution been used to require a State to recognize a type of marriage that would violate its own strong public policy.”
On July 14, the House Judiciary Committee approved, 21-13, a bill (H.R. 3313) that would limit federal court jurisdiction over the Defense of Marriage Act (DOMA)(P.L. 104-199), which denies federal recognition of same-sex marriages. The Constitution Subcommittee held a hearing on the measure on June 23 (see The Source, 6/25/04). It was the fourth in a series of five hearings held this year on the topic of same-sex marriage (see The Source, 5/14/04, 4/23/04, and 4/2/04).
Sponsored by Rep. John Hostettler (R-IN), the Marriage Protection Act would bar all federal courts, including the U.S. Supreme Court, from hearing cases concerning the constitutionality of DOMA. Under the bill, cases concerning same-sex marriage would be heard only in state courts.
Prior to the final vote, the committee approved, by voice vote, a substitute amendment by Chair James Sensenbrenner (R-WI) that would bar federal courts from hearing cases related to a DOMA provision authorizing states, territories, and American Indian tribes to not recognize marriage licenses of same-sex couples issued in other jurisdictions.
The committee rejected the following Democratic amendments:
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In a press release announcing committee approval of the Marriage Protection Act, Rep. Sensenbrenner said that the bill “protects the people’s right to decide state marriage policy under DOMA, which Congress passed overwhelmingly and President Clinton signed into law. The Constitution allows the exercise of ‘judicial power,’ but it does not grant the federal courts unchecked power to define the limits of its own power. Integral to the American constitutional system is each branch of government’s responsibility to use its powers to prevent overreaching by the other branches. Far from violating the ‘separation of powers,’ as some have alleged, this legislation that leaves state courts with jurisdiction to decide certain classes of cases would be an exercise of one of the very ‘checks and balances’ provided for in the Constitution.”
In his opening statement, Rep. Jerrold Nadler (D-NY) disagreed. “If there is any word that describes this legislation it is ‘discriminatory,’ both in its purpose and its effect. We have had four hearings so far on the subject of same-sex marriage. Any court reviewing this legislation will certainly look at what has been said in the legislative record. It is an unabashed record of hostility to a particularly unpopular minority. This bill has only one purpose, to ensure that members of this group do not get their day in court to assert their rights.” He went on to add, “It is our very system of government, and the constitutional checks and balances, that is under attack. If the Congress, by statute, can prevent the federal courts from applying the constitution to any subject matter, then the protections of an independent judiciary and a bill of rights will be no more than a puff of smoke. It will be unpopular minorities whether religious minorities, political minorities, lesbians, or gays, or whoever is unpopular at the moment who will lose their rights.”
