WASHINGTON (ABP) — On the eve of the first official congressional hearing on a proposed constitutional amendment to ban gay marriage, its principal sponsors announced a change they say clarifies the proposal — but the amendment's opponents say the change is merely a ruse to gain more support for the effort.
In a March 22 press conference at the Capitol, Sen. Wayne Allard (R-Colo.) and Rep. Marilyn Musgrave (R-Colo.) announced they would alter the wording of the proposed Federal Marriage Amendment to make sure it allowed states room to enact marriage-like “civil unions” for gay couples.
Since the proposal first started making headlines last year, it has inspired heated debate over the extent of its ban. Most of the bill's supporters said that it would simply ban states from legalizing gay marriage and prevent judges from imposing such marriages — or any legal arrangement that would provide “the legal incidents” of marriage — on states without legislators' consent.
But opponents of the FMA have said its language was too vague, and could be interpreted to overturn civil-union and domestic-partnership laws that a handful of states and scores of municipalities across the country have already established.
Allard, the amendment's chief Senate sponsor, said the new language would “make it clear, without any ambiguity, that the states” would be able to enact civil unions.
Musgrave agreed, and said the sponsors' intent was never to ban all civil unions, but simply “to prevent states from being forced to recognize out-of-state contracts” — such as same-sex marriages performed in other states — that conflict with the state's social policy.
The head of an organization pushing the amendment said the effort is “not about benefits” that would be denied to gay or lesbian couples in many states if civil unions or domestic partnerships were outlawed nationwide. “It is about marriage,” Matt Daniels, president of the Alliance for Marriage, told reporters. “We don't want to carry a road map in our car that tells us what marriage is by what state we're in.”
But a spokesman for one organization opposing the amendment said the changes are insufficient. “Changing the constitution is always extreme,” said Steven Fisher, director of communications for the Human Rights Campaign. HRC is the nation's largest gay civil-rights organization.
“For over 200 years, the Constitution has been amended to expand rights, not take them away,” Fisher continued. “The amendment denies the rights and responsibilities of marriage to same-sex couples. And there's no way to change that except to defeat the amendment.”
The amendment's original language defined marriage in the United States only as “the union of a man and a woman.” Its second sentence went on to read, “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.”
The altered proposal announced by Musgrave and Allard would omit the phrase “nor state or federal law.” The next phrase would be altered to read, “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.”
The dispute over the implications of the ruling centers on the phrases “the legal incidents thereof” and “shall be construed” in the second sentence. Opponents of the ban — backed up by many mainstream legal experts — have said the “legal incidents” phrase could be interpreted to ban civil unions and domestic partnerships nationwide just as it bans marriage for same-sex couples.
But Allard, Musgrave and Daniels have said repeatedly that the phrase “shall be construed” simply restricts so-called “activist judges” from reading marriage or domestic partnership rights into federal or state constitutions without explicit authorization from legislatures.
When asked why the sponsors didn't alter the proposal to include more explicit language guaranteeing states the right to enact civil unions, Daniels said it was “really a function of economy of words.” Daniels said his group's goal all along has not been to keep state legislatures from enacting civil unions, but to protect “traditional marriage” and prevent same-sex unions from being imposed on states by judges.
The new language “will cover us, will achieve our goal,” Daniels said.
The proposal will receive its first official legislative hearing March 23. The Senate Judiciary Committee's Subcommittee on the Constitution will hear expert testimony from several witnesses who oppose and support the bill.
The Senate version of the amendment is S.J.R. 26.
-30-