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A third version of the amendment would

Fourth, the amendment as proposed is consti-

consist solely of the first sentence of the above

tutional overkill that reaches well beyond the

two amendments: "Marriage in the United

stated concerns of its proponents, foreclosing

States shall consist only of the union of a man

not just courts but also state legislatures from

and a woman."

recognizing same-sex marriages and perhaps

The second sentences of the Senate version

other forms of legal support for same-sex rela-

and the Musgrave version are similar but differ

tionships. Whatever one thinks of same-sex

in three substantive respects. First, the Senate

marriage as a matter of policy, no person who

version drops the Musgrave version's reference

cares about our Constitution and public poli-

to "state or federal law." Second, the Senate ver-

cy should support this unnecessary, radical,

sion replaces the Musgrave version's reference

unprecedented, and overly broad departure

to "marital status" with "marriage." Third, the

from the nation's traditions and history.

Senate version replaces the Musgrave version's

reference to "unmarried couples or groups"

The Proposed Federal

with "any union other than the union of one

Marriage Amendment

man and one woman." Although in some

respects the Senate version appears narrower

A constitutional

than the Musgrave version, its practical effect

Several versions of a federal marriage

amendment

may be nearly as sweeping.

amendment are being considered in Congress.

On July 15, 2004, the Senate rejected an

All of the versions would, at a minimum, for-

banning same-

attempt to invoke cloture to proceed with con-

bid states to recognize same-sex marriages.

sex marriage is

sideration of the Senate version of the FMA. The

One version of the amendment was intro-

vote was 48 in favor of cloture and 50 opposed.5

unnecessary, even

duced in the House of Representatives in 2004

by Rep. Marilyn Musgrave (R-CO) as H.J. Res.

Under Senate rules, cloture would have required

if one opposes

56. The Musgrave version would amend the

60 votes. The FMA likewise fell short of the

same-sex

Constitution as follows:

supermajority needed for passage in the House

of Representatives on September 30, 2004, with

marriage as a

Marriage in the United States shall con-

227 members in favor, 186 against, and 20 not

matter of policy.

voting.6 Ratification of an amendment under

sist only of the union of a man and a

woman. Neither this Constitution or

the usual procedure would require a two-thirds

[sic] the constitution of any State, nor

vote in the Senate and the House, followed by

approval from three-fourths of the states.7

state or federal law, shall be construed

to require that marital status or the

Except where necessary to distinguish

legal incidents thereof be conferred

among the various amendments, I will use

upon unmarried couples or groups.

the acronym FMA to refer to the amend-

ments generally.

In the Senate, an amendment with some-

what different language has been introduced

A Federal Amendment Is

as S.J. Res. 1. The Senate version would amend

Unnecessary

the Constitution as follows:

Marriage in the United States shall

A constitutional amendment banning

consist only of the union of a man and

same-sex marriage is unnecessary, even if one

a woman. Neither this Constitution,

opposes same-sex marriage as a matter of

nor the constitution of any State, shall

policy.

be construed to require that marriage

or the legal incidents thereof be con-

The Alleged Threat from Courts and

ferred upon any union other than the

Local Officials

union of a man and a woman.

Advocates of the proposed FMA claim it is

3