Measures Before Congress on Same-Sex Marriage

MEASURES BEFORE CONGRESS ON SAME-SEX MARRIAGE

July 15, 2004

In 1996, Congress enacted the Defense of Marriage Act (DOMA), which denies federal recognition of same-sex marriages, and gives states the right to deny same-sex marriages licensed in other states. Since passage of federal DOMA, thirty-nine states have enacted legislation prohibiting same-sex marriages or the recognition of same-sex marriages formed in another jurisdiction.

In response to recent court decisions, Congress is revisiting the issue of the definition of marriage. The April 2003 Supreme Court decision in Lawrence v. Texas, which struck down a Texas state law prohibiting private consensual sex between same sex adults, was viewed by many as beginning the process of granting more rights, including the right to marry, to same-sex couples. This was followed by the November 2003 Massachusetts Supreme Court ruling declaring it unconstitutional to deny same sex couples civil marriage rights. Following the Massachusetts decision, officials in several states and localities began issuing marriage licenses to same-sex couples.

These state and local attempts to define marriage have prompted the U.S. Senate to take up the issue. The most recent Senate action was an attempted vote on the proposed Federal Marriage Amendment, which would define marriage as the union between a man and a woman. Senate action was stalled by a failed attempt to invoke cloture. The cloture motion failed by a vote of 48 - 50, 12 votes short of the 60 votes needed to limit debate and continue Senate action on the proposed amendment.

BILLS BEFORE CONGRESS

Federal Marriage Amendment

A joint resolution proposing an amendment to the Constitution of the United States relating to marriage (S.J. RES. 26)/(H.J. RES. 56)

This legislation, known as the Federal Marriage Amendment, was introduced in the House by Representative Marilyn N. Musgrave (R-CO) on April 21, 2003 and in the Senate by Senator Wayne A. Allard (R-CO) on November 25, 2003. The legislation proposes to amend the Constitution by defining marriage in the U.S. as solely the union of a male and a female. At the time of introduction the legislation stated:

“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.”

In both the House and the Senate this legislation was referred to the appropriate Committee. The House Judiciary Committee held several hearings regarding the legislation.

On Monday, March 22, 2004, just a day prior to a Senate Judiciary Committee Hearing on the legislation, Sen. Allard re-introduced the Federal Marriage Amendment as S.J. Res. 30. This new version of the proposed amendment removed the clause “nor State or Federal law,” so that the proposed amendment now read:

“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, 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.”

Senator Allard said the change was made “to fine-tune the language of the FMA.” He continued, “The new language makes the intent of the legislation even clearer: to protect marriage in this country as the union between a man and a woman, and to reinforce the authority of state legislatures to determine benefits issues related to civil unions or domestic partnerships.” However, during the hearing on the legislation, Senate Judiciary Democrats expressed frustration that the language was changed the day before the hearing was held.

On July 7, 2004, Senator Allard again reintroduced the legislation, now S.J. Res. 40. This legislation is identical to S.J. Res. 30. This version of the proposed Federal Marriage Amendment was placed directly on the Senate Calendar. The legislation was brought to the Senate Floor for debate on July 12, 2004. On July 12 a motion for cloture was filed. A cloture motion is a procedure by which the Senate can vote to place a time limit on consideration of a bill or other matter (usually an additional 30 hours), and thereby overcome a filibuster. Cloture requires a vote of three-fifths of the full Senate, normally 60 votes. The cloture vote took place on July 14, 2004. The cloture motion failed by 12 votes, with a final vote of 48 - 50. Six Republicans joined nearly all the Democrats in opposing the motion to limit debate and move toward final action on the amendment.

Other Federal Legislation to Define Marriage

State Regulation of Marriage Is Appropriate Act (H.R. 2677)
Designed to eliminate Federal policy on marriage’s definition; this bill was introduced by Rep. Barney Frank (D-MA) on July 9, 2003. The bill changes Federal law to repeal the definition of “marriage” as only a union between one male and one female, and of “spouse” as referring to a person of the opposite gender who is a husband or a wife. The bill has 4 co-sponsors and was referred to the House Judiciary committee’s subcommittee on the Constitution.

To amend title 28, United States Code, to limit Federal court jurisdiction over questions under the Defense of Marriage Act (H.R. 3313)
Rep. John N. Hostetler (R-IN) introduced the “Marriage Protection Act of 2003” on October 16, 2003. The bill changes the Federal judicial code to deny Federal Courts jurisdiction to hear or determine questions pertaining to the interpretation of the Defense of Marriage Act (DOMA) or the Federal statute that defines marriage. It has 48 co-sponsors. On July 14, 2004 the House Judiciary Committee amended the legislation and ordered the bill reported.

A resolution to affirm the Defense of Marriage Act (S. RES. 275)
This bill says that the Senate believes that Congress should affirm through whatever methods that U.S. marriage is the union of one man and one woman, that same-sex marriage is not a recognized right in the U.S., that the U.S. Constitution or Federal laws shall be interpreted to require that marital status or its legal incidents be given to unmarried couples or groups, that the DOMA is a proper and constitutional use of Congressional power under the effects clause of section 1 of Article IV, and that no State, territory, or possession of the U.S., or Indian tribe, will have to recognize another State, territory, possession or tribe’s definition of marriage. Sen. Don Nickles (R-OK) introduced this bill on November 25, 2003. It was referred to the Senate Judiciary committee, and it has 6 cosponsors.

To limit the jurisdiction of the Federal courts, and for other purposes. (H.R. 3893)
This bill prohibits federal courts, including the Supreme Court, from hearing and deciding cases that deal with state laws and policies regarding religious liberties or privacy. This also includes cases involving sexual practices, sexual orientation or reproduction. The bill also does not allow the Supreme Court to use the Equal Protection Clause to change the traditional definition of marriage. Finally, it also allows judges who in Rep. Paul’s words, “[violate] the act’s limitations on judicial power” to be impeached by Congress or removed by the president, according to Congressionally-established rules. The “We the People Act” was introduced on March 4, 2004, by Rep. Ron Paul (R-TX). It has 1 cosponsor, and it has been referred to the House Committee on the Judiciary, Subcommittee on Courts, the Internet, and Intellectual Property.

Reference

Congressional bills: http://thomas.loc.gov

For additional information regarding Congressional Activity on Same-Sex Marriage, please contact Sheri Steisel (sheri.steisel@ncsl.org) or Susan Parnas-Frederick (Susan.Frederick@ncsl.org)

For more information regarding State Activity on Same-Sex Marriage, visit http://www.ncsl.org/programs/cyf/samesex.htm or contact Christi Goodman at 303-364-7700 or cyf-info@ncsl.org.

Prepared by:
Katherine Gigliotti, Emerson Hunger Fellow
Jessica Allison, Intern
NCSL Human Services and Welfare Committee