State Marriage Amendments

By FPN Policy Analyst Alexander Mason

State marriage amendment proposals vary greatly across the country. This policy paper explains FPN’s positions on the various forms of these amendments and explains why the differences between them are so significant.

In 2003, the U.S. Supreme Court created a Constitutional “right” to homosexual sodomy in the landmark case known as Lawrence v. Texas. That same year, the Massachusetts Supreme Judicial Court took the unprecedented step of requiring its legislature to create so-called “gay marriages,” thereby triggering fears that the full faith and credit clause in the U.S. Constitution would be used to require all states to recognize homosexual “unions” from Massachusetts.

Since that time, pro-family lawmakers and citizens have amended most state constitutions in order to preserve the centuries-old definition of marriage between one man and one woman. Some of those states adopted amendments that define the term “marriage” AND ban counterfeits like civil unions and domestic partnerships. Unfortunately, some other states only define the word “marriage.”

State marriage amendment proposals vary greatly across the country. This policy paper explains FPN’s positions on the various forms of these amendments and explains why the differences between them are so significant.

The new objective: Gaining “legal incidents” vs. “the m-word”

Just as water takes the path of least resistance as it flows downhill, liberal activists who want to redefine the family are constantly changing their tactics in order to accomplish their objectives. That’s why it’s important for pro-family groups on the state level to learn from the fortunes and missteps of those who have forged ahead.

Perhaps no more important lesson can be learned from the efforts thus far, than the willingness of homosexuals to change their goals and methods when necessary, in order to obtain their ultimate objectives incrementally. As an example, homosexual activists have begun to accept the fact that public opinion and political momentum have clearly shifted against “gay” marriage. Therefore, while liberals continue to publicly demand “equality” for homosexuals who want the rewards of marriage, they are simultaneously working behind the scenes to gain the benefits of marriage without immediately demanding they be able to use the word.

Here’s a description of this shrewd change in tactics, as explained by homosexual activist and columnist John Corvino:

(1) Properly crafted civil-unions legislation could grant ALL of the legal incidents of marriage (albeit under a different name). I am not talking about “watered-down” civil unions here; I’m talking about the full legal enchilada.

(2) The difference between such unions and marriage, since it is not a difference in legal incidents, appears to be a difference in level of social endorsement carried by the “m-word.”

(3) Our best strategy (in most states) for securing the tremendously important legal incidents is to fight for them under the name “civil unions.”

(4) Our best strategy for securing the social endorsement (i.e., marriage under the name “marriage”) is first to secure the legal incidents. Then people will look at our civil unions, realize that they are virtually indistinguishable from marriages, start calling them marriages, and gradually forget why they objected to doing so before. That’s what happened in Scandinavia, and it’s happening elsewhere in Europe.

(5) Attempts to force the social endorsement too quickly (by demanding the name “marriage” above and beyond the legal incidents) may backfire, resulting in state constitutional bans not only on gay marriage but also on civil unions. The upshot would be to delay BOTH the legal incidents and the social endorsement.

As pro-family advocates work to amend constitutions in their respective states, it is critical that they seek the advice of a variety of litigating marriage-law attorneys on the national level – as well as the leaders of successful marriage amendment battles in other states. This way, they can avail themselves of the “lessons learned” in other places; both legal and political. They must draw on a broader base of knowledge than just the conventional legal wisdom from within one state’s borders, or even from one or two outside organizations.

Family Policy Network’s research on state marriage amendments has involved the input of ten different pro-family attorneys in a total of five states, and nearly as many expert policy analysts in that many organizations – who have all been working almost exclusively on the issue of marriage in their respective positions within state and national pro-family organizations.

Almost unanimously, these experts warn against falling prey to weak marriage amendment language versions that only protect the legal definition of the word, “marriage.” Doing so not only fails to accomplish the overall marriage amendment objective, but it depletes the political will to adopt real language that will do the job.

“Something” vs. “Nothing” ???

In some state legislatures, weak marriage amendments have been proposed because of so-called “political realities” that prevent a serious defense of marriage, rather than just the word. The intent of conservatives who support such proposals is to achieve “something” rather than “nothing.” Here are some brief comparisons of the stated benefits vs. drawbacks of such compromised proposals:

Stated benefit: Proponents say, “Well, at least ‘marriage’ will be safe from attack, even though we will still be vulnerable to ‘civil unions’ and ‘domestic partnerships.’

Problem: Rewarding non-marital relationships is harmful, regardless of the name the arrangements are given. In these instances, society is rewarding unmarried couples the same way it formerly rewarded married couples. Hence, the preeminent place formerly reserved for marriage in society is open to any kind of arrangement.

Stated benefit: Proponents say, “The political fight over the term “marriage” will help us elect more conservative politicians and defeat some liberal politicians.”

Problem: Political research shows liberal politicians routinely embrace weak marriage amendments. As an example, Democrat Presidential candidate John Kerry was quoted as saying:

“While I do not support gay marriage, I support civil unions and I believe that gays and lesbians should have full rights and equality under the law.”

Weak marriage amendment proposals give moderate to liberal politicians a chance to boost their political support among otherwise conservative voters. Therefore, weak marriage amendment proposals are politically detrimental to conservative politicians.

Stated benefit: Proponents say, “Weak language isn’t bad. It just isn’t perfect. Therefore a proposal that defines marriage, even though it leaves the door open to civil unions, is still worthy of support.”

Problem: When the legal incidents of marriage are available for “civil unions” and “domestic partners,” the same harm is done as when they are available in the name of marriage. Liberal politicians are patient, and will fight for their objectives incrementally. John Kerry told homosexual activists to work toward incremental gains while he was running for President in 2004. According to a popular homosexual website, Kerry said:

“It may well be that if we achieve civil unions … then we may — all of us — progress … to a place where there is a different understanding [on marriage]. But I think that one has to respect the current cultural-historical-religious perception [against same-sex marriage], and I respect it.”

Stated benefit: Proponents say, “This is just a first step. We will ban civil unions and domestic partnerships later.”

Problem: Marriage amendments are supported in large numbers by people who don’t agree with all of the details. In fact, states wherein voters appeared to be ambivalent about civil unions and domestic partnerships (albeit only for a lack of information) have passed marriage amendments that effectively banned those arrangements, too. (Michigan and Ohio even passed comprehensive language by garnering more support than President Bush on election day.) Once a marriage amendment is passed, the broader base of support needed to pass another amendment is gone.

CONCLUSION: State marriage amendments that merely define the term “marriage” without banning counterfeits should be opposed. Wherever proposed, citizens and lawmakers should work to defeat any such proposal, since its passage would merely quench the thirst of citizens to protect the family, without providing any substantive benefit. Once weak language is defeated, comprehensive language can be proposed.

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