By Jan LaRue, Esq.
8/1/2002

I. Introduction:

Concerned Women for America (CWA) is unreservedly committed to preserving marriage as God created and ordained it-to unite one man and one woman, who "shall become one flesh." For Christians, marriage is the symbol of Christ's union with His Bride, the Church. The origin, symbolism and purposes of marriage, including procreation, make marriage much more than a name. Marriage is the unique cornerstone and foundation of society. Religious and civil laws have granted marriage special recognition, benefits, responsibilities and protections since the beginning of recorded history.

Only marriage between a man and a woman is permitted or recognized in the United States by federal and all state laws. Homosexuals have been trying to gain the right to marry primarily by challenging state marriage laws in the courts. Thus far, they have not succeeded.
It is self-evident why persons of the same-sex should not be permitted to marry. CWA believes that preserving marriage means more than preserving it in name only. It means that neither federal nor state laws should recognize, benefit or confer equal status with marriage on any other interpersonal relationship.

America has federal laws to protect our currency because we recognize that counterfeit currency is a serious threat to our national economy. We must have laws to preserve and protect marriage because counterfeit marriage is a serious threat to the stability of society and the health and welfare of children. CWA opposes the Federal Marriage Amendment (FMA) because it would not prevent state legislatures from recognizing and benefiting civil unions and other such relationships, which would result in legalized counterfeit marriage.

II. THE FEDERAL DEFENSE OF MARRIAGE ACT (DOMA):

In order to preserve marriage for purposes of federal law and assist states to preserve marriage under their state laws, Congress enacted the DOMA in 1997 by a nearly unanimous vote. In the DOMA, Congress expressed its interpretation of the Full Faith and Credit Clause of Article IV of the U.S. Constitution to permit federal territories, possessions, and states to refuse to recognize relationships between same-sex persons that may be "treated as marriage" under other state laws. The DOMA does not prevent states from legalizing or recognizing same-sex "marriage" or similar unions. It reads:

No State, territory, or possession of the United States, or Indian tribe, shall be required to give effect to any public act, record, or judicial proceeding of any other State, territory, possession, or tribe respecting a relationship between persons of the same sex that is treated as a marriage under the laws of such other State, territory, possession, or tribe, or a right or claim arising from such relationship.

III. A STATE DOMA:

Since the federal DOMA became law, 36 states have enacted a state DOMA. Californians enacted a DOMA in 2001 by a ballot initiative. It reads:

Only marriage between a man and a woman is valid or recognized in California.
California's DOMA limits marriage to a man and a woman. It does not mention civil unions, domestic partnerships, or other similar relationships. Californians could have prohibited state benefits and recognition of civil unions or other "similar same-sex relationships," but they did not.

After California's DOMA became law, "The California Family Protection Act of 2001" (AB 1338) was introduced in the state Legislature. AB 1338 acknowledges that California's DOMA is law and limits marriage to opposite-sex couples. AB 1338 states in part:

§322. (a) A spouse in a civil union shall have all the same rights, protections, benefits, and responsibilities under law, whether they derive from statutes, administrative or court rule, policy, common law, or any other provision or source of law, that are granted to a spouse in a civil marriage.

AB 1338 does not permit persons of the same sex to obtain a marriage license, marry or be legally recognized as married spouses. It creates a "civil union" license and permits those qualified to join in a civil union to be legally recognized as civil union spouses with all of the rights and benefits of marriage. While AB 1338 subverts the intent of most Californians who voted for the DOMA, the text of AB 1338 addresses civil unions unlike California's DOMA.

IV. THE FEDERAL MARRIAGE AMENDMENT (FMA):

Concerned that an activist court will eventually legalize same-sex marriage, the Alliance for Marriage (AFM) was formed to gain passage of a federal constitutional amendment. The FMA limits marriage to a man and a woman and prohibits a court from interpreting any state or federal law as requiring that marital status or the legal incidents of marriage be conferred on other relationships. The FMA was introduced in Congress on May 15, 2002, by six co-sponsors. It reads:

Marriage in the United States shall consist only of the union of a man and a woman. Neither this constitution or 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 AFM has emphasized that the first sentence of the FMA simply defines marriage.
And that the second sentence is intended to stop activist courts from granting marital benefits to unmarried couples or groups, while leaving the issue of creating civil unions, domestic partnerships and the benefits associated with marriage in the hands of state legislatures. [See the AFM chart available online at http://www.allianceformarriage.org/
reports/fma/colorchart.cfm.]

Following are statements about the reach of the FMA from Matt Daniels, executive director of the AFM, and FMA supporter Judge Robert H. Bork. These statements acknowledge that the first sentence of the FMA simply defines marriage and the second sentence prohibits courts but not state legislatures from creating civil unions and granting them "marital status or the legal incidents thereof."

At the FMA press conference on July 12, 2001, Matt Daniels released his written statement about the FMA, which is posted on the AFM Web site. It reads in part:

The first sentence simply states that marriage in the United States consists of the union of male and female. The second sentence ensures that the democratic process at the state level will decide the allocation of the benefits and privileges traditionally associated with marriage. It precludes the courts from distorting existing constitutional or statutory law by requiring that 'marital status or the legal incidents thereof' to be conferred upon other pairings or groupings. The Federal Marriage Amendment is thus narrowly tailored to address negative developments in the courts. At the same time, the amendment does not depart from principles of federalism, under which family law is, for the most part, a state matter. The traditional autonomy of state legislatures on family law matters is preserved by the text of the Amendment.

Mr. Daniels appeared on CNN July 12, 2001, with Winnie Stachelberg of the Human Rights Campaign to discuss the FMA. Following are their comments from the transcript:

Stachelberg: Well, it is wrong, and it's for this reason: Because this amendment would not only tear up the fabric of this country, but it would make hospital visitation that gay and lesbian partners can do in states and localities all across this country illegal, it would tear the fabric of domestic partner legislation that is already in 57 states and localities across this country.

Daniels: What you just heard was actually fallacious. The amendment would leave in place all domestic partner schemes passed through the legislative process as well as anything related to benefits like health care. That's why our leaders support it. It just sends a positive message to our kids about marriage, about families and about their future, something that the American people agree with.

Judge Robert H. Bork in an op-ed written in support of the FMA left no doubt as to the meaning of the first sentence and emphasized that the second sentence limits courts, not legislatures:

So far as legislatures are concerned, the primary thrust of the sentence's prohibition is symbolic, reserving the name of marriage to its traditional meaning. But symbolism is crucial in cultural struggles. The second sentence expresses the main thrust of the amendment. It recognizes that liberal activist courts are the real problem. If courts are prevented from ordering same-sex marriage or its equivalent, the question of arrangements less than marriage is left where it should be, to the determination of the people through the democratic process. To try to prevent legislatures from enacting permission for civil unions by constitutional amendment would be to reach too far. It would give opponents the opening to say we do not trust the people, when, in fact, we are trying to prevent courts from thwarting the will of the people.6

After AB 1338 was introduced, the AFM claimed that if the FMA were law, the first sentence would prevent AB 1338. In an e-mail dated March 5, 2002, Mr. Daniels wrote the following about the FMA in relation to AB 1338:

But the good news is that the Federal Marriage Amendment will provide final and lasting protection against AB 1338-and any similar legislation that may be proposed in other states. This is because the first sentence of the Federal Marriage Amendment unequivocally protects marriage as the union of male and female from either judicial or legislative redefinition.

Nothing in the preceding statement supports the claim that the FMA will provide "final and lasting protection against AB 1338" because AB 1338 does not redefine marriage. It creates and benefits civil unions and differentiates between a civil union license and a marriage license, and between a civil union spouse and a married spouse.

If the first sentence of the FMA would stop AB 1338, then the FMA's second sentence would be unnecessary. It would also mean that the first sentence denies what the second permits-that civil unions are left to state legislatures to decide. Furthermore, if the first sentence of the FMA would prevent AB 1338's civil unions from becoming law, so would California's DOMA because California's DOMA is virtually identical to the first sentence of the FMA.

California DOMA: "Only marriage between a man and a woman is valid or recognized in California."

FMA: "Marriage in the United States shall consist only of the union of a man and a woman."
Each sentence limits marriage to the union of a man and a woman. The effectiveness of a constitutional amendment depends on its text. Textually, the first sentence of the FMA does no more than California's DOMA.

The FMA chart available on the AFM Web site states that under the FMA, "civil unions," "domestic partnerships" and "benefits associated with marriage," are decisions for a state legislature. The FMA does not limit how far state legislatures may go in benefiting civil unions, nor do the previously quoted statements of Mr. Daniel and Judge Bork. CWA does not believe that AFM's statements on the chart can be reconciled with the AFM's claim that the FMA would stop AB 1338. To claim that the FMA would prevent AB 1338 is to deny that "the democratic process at the state level will decide the allocation of the benefits and privileges traditionally associated with marriage."

V. CONCLUSION AND RECOMMENDATION:

CWA believes that if AB 1338 became law in California, marriage would be preserved in name only. And the FMA would not prevent legalized counterfeit marriages, otherwise known as civil unions, which are permitted by AB 1338 or other such legislative acts.

Amending the U.S. Constitution is necessarily and understandably a rigorous task. If a marriage amendment is ratified, there will not be another. CWA believes that an amendment to preserve marriage should do more than preserve it in name only. Marriage should be preserved as the unique relationship that is the cornerstone and foundation of civilization. The FMA does not prevent legislative acts that would create civil unions that are counterfeit marriages. Although legally distinct from marriage, it is a distinction without a difference in all other respects.

CWA believes that a constitutional amendment can be written that prevents civil union counterfeit marriages and also recognizes that traditional family law matters remain with the states to decide. CWA offers for consideration to supporters of a constitutional amendment the following language to preserve marriage: Section 1: Marriage in the United States, whether entered into within or outside of the United States, shall consist only of the legal union of one man and one woman. Every person has the right to marry a person of the opposite sex, subject to state laws based on age and consanguinity. Neither the United States nor any State, or subdivision thereof, shall confer any benefit, protection, right, or responsibility of marriage on unmarried couples, or groups. Section 2: This article shall be self-executing, and citizens of the United States shall have standing to seek enforcement of this article in federal and state courts. Section 3: Upon approval by Congress, this amendment shall be ratified if approved by convention in three-quarters of the states within a period not to exceed four years.