GOP gives anti-gay measure a majority, but effort falls well short of two-thirds
On September 28, despite a Republican majority and presidential backing, a proposed amendment to the U.S. Constitution that would define marriage as a union between a man and a woman failed to gather the two-thirds majority vote for passage through the House of Representatives, even though it received a simple majority.
The Senate failed to pass a similar amendment on July 12. Amendments must win two-thirds majorities in the House and Senate and be ratified by three-fourths of state legislatures to become part of the Constitution.
As in the Senate, the vote fell largely along party lines, though 36 Democrats voted in favor, along with 191 Republicans. The negative votes were from 158 Democrats, 27 Republicans, and Vermont’s independent, Bernard Sanders.
Sponsored by Marilyn Musgrave, a Colorado Republican, the measure, formerly known as the Federal Marriage Amendment, reached the House floor as the Marriage Protection Amendment, and read as follows: “Marriage in the United States shall consist solely 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 that of a man and a woman.”
An earlier version of the amendment would have banned federal and state laws, as well as the U.S. and state constitutions, from conveying the “legal incidents” of marriage to same-sex couples. Two weeks ago, Musgrave introduced a reworded amendment that now places the “legal incidents” restriction only on constitutions. Critics of the original amendment had argued that the language would broadly nullify state and local domestic partnership and civil union laws in the drive to prevent same-sex marriage. Such concerns contributed to the failure of the Senate’s version.
In July, the Senate took three days to consider a marriage amendment, attracting widespread media coverage, and in the end broadcasting a very public defeat for an initiative strongly backed by Pres. George W. Bush.
The House Rules Committee limited debate to less than three hours. Overshadowed by presidential politics, hurricanes and Iraq, the Marriage Protection Amendment debate in the House received much less attention than the Senate version.
“Traditional marriage is worth preserving, because the nuclear family is far and away the best environment in which to raise children,” Musgrave said. “Every child deserves both a mother and a father.”
She insisted that gay marriage would lead to a higher divorce rate and more children born out of wedlock.
Opposition came from two sides. James McGovern, a Massachusetts Democrat, whose state’s Supreme Judicial Court last year decided in favor of same-sex marriage, drew on that example to counter the argument that same-sex marriage would lead to the collapse of society.
“Starting on May 17, 2004, gay men and women in Massachusetts got married, and guess what? The world kept spinning on its axis, the sun came up the next day, people went to work, sent their kids to school and cheered for the Red Sox,” McGovern said.
He added, “Our Constitution was meant to be a sacred document by which we protect and expand individual rights, not to take them away, not to restrict them.”
Jerrold Nadler, a Manhattan Democrat, and ranking member of the Committee on the Judiciary’s Subcommittee on the Constitution complained that the Republican House leadership bypassed an integral part of the process in their rush to get the amendment to the floor and create a divisive issue just before the November elections. He said that Musgrave’s recent change in the amendment’s wording should have been submitted to the judiciary committee for consideration before it reached the House for a full vote.
Nadler also criticized the amendment’s discriminatory nature.
“There are many loving families who deserve the benefits and protections of law,” Nadler said. “They are not from outer space, they are not a public menace and they do not threaten anyone. They are our neighbors, our co-workers, our friends, our siblings, our parents, and our children. They deserve to be treated fairly. They deserve to have the rights of any other family.”
Several conservative lawmakers also argued against the amendment from a states’ rights angle. John Hostettler, an Indiana Republican, and an amendment opponent, said, “By setting forth marriage in the Constitution will we also set forth the basis upon which some future Federal court claims the ability to enter into all forms of domestic relations law now reserved to the states? I say it is very plausible.”
Hostettler was the original sponsor of the recently passed H.R. 3313 Marriage Protection Act that prevents all Federal courts—including the Supreme Court—from ruling on the constitutionality of the Defense of Marriage Act (DOMA). DOMA allows individual states the right to refuse to recognize same-sex marriages performed in other states.
The floor debate included some interesting exchanges. John Carter, a Texas Republican, claimed that gay marriage was a threat to the stability of heterosexual marriages, saying he had presided over 20,000 divorces in his career as a judge. When Barney Frank, the openly gay Democrat from Massachusetts, asked Carter how many of those 20,000 were caused by gay relationships, Carter responded with the figure of six.
Near the end, Majority Leader Tom DeLay, a Texas Republican, vowed that the amendment’s defeat would not stop him from bringing the proposal up again.
“We will protect marriage in America,” he said.
In an interview this week, Nadler said the entire process smacked of divisive politics.
“In the waning week of the current session of Congress, when we have only approved one out of 13 appropriations bills and we have a transportation bill that is a year and half overdue, the House leadership chose to take this up instead.”
Nadler argued the goal was simply to get representatives on the record and then use their votes as an issue in upcoming elections. He also called the Republicans highly irresponsible for letting an un-vetted amendment get to the House floor.
“We have no way of knowing how courts might interpret the language of this amendment,” he said. “There is no judicial history because these are new legal phrases. No one can explain them. Normally, we take time debating the language in committee and calling on witnesses to give their opinions. But the Republicans chose not to do that so they could create a wedge issue.”
The marriage amendment’s appearance in the House echoes the drive to get similar amendments added to the constitutions of individual states through voter referenda. Both Missouri and Louisiana have recently passed such amendments, though a state judge in Louisiana this week overturned the measure there.
This November, proposals limiting marriage to heterosexuals are to be decided by voters in eleven states—Arkansas, Georgia, Kentucky, Michigan, Mississippi, Montana, North Dakota, Ohio, Oklahoma, Oregon and Utah. Most are expected to pass.
Also this week, the House voted overwhelmingly in favor of a non-binding resolution instructing its leaders to preserve the hate-crimes language in the Senate’s version of the Defense Authorization Bill.
In June, the Senate passed the Local Law Enforcement Enhancement Act (LLEEA) also known as the Federal Hate Crimes bill as an amendment to the Defense Authorization Bill. It would lend federal aid to local law enforcement agencies in investigating and prosecuting violent crimes motivated by a victim’s actual or perceived sexual orientation, gender or disability, and also allow federal prosecution of those crimes.
The House passed the same defense bill without the hate crimes language. The non-binding resolution passed by the House calls on members of the House-Senate conference committee to keep the Senate’s version when reconciling differences between the two bills before the final version is passed onto the White House for the president’s signature. Republican House leadership under DeLay has refused to allow the hate crimes bill to come up for a direct vote in the House. Nadler said that the House representative in the conference committee, Tom Feeney, a Florida Republican, testified on September 14 before the Armed Services Committee that he intends to object to the hate crimes language and see it removed from the final bill. The final version is expected sometime later this week and Nadler doesn’t think hate crimes language will survive the conference.
Senator Mark Warner, a Virginia Republican who chairs the House-Senate Conference Committee and who voted in favor of the LLEEA, told the Washington Post on September 17 that he hopes the language will be preserved in the final bill, but added that he would not let the important funding deadlock on what is essentially an unrelated issue.