JURIST Guest Columnist Lynn Wardle of J. Reuben Clark School of Law at Brigham Young University says that the 2006 House and Senate votes on the Federal Marriage Protection Amendment may not have been sufficient to send the amendment to the states for ratification, but they do show that the movement to protect marriage as a human right is making slow but certain national progress…

On Tuesday, July 18, a majority of the U.S. House of Representatives voted for H.J. Res. 88, in favor of sending the proposed Federal Marriage Protection Amendment (FMPA) to the states for ratification, with 236 yeas, 187 nays, and one “present.” The FMPA received 55.6% of the votes cast, and had a 49-vote margin for passage. While that is an impressive majority, two-thirds vote of each house of Congress is required to propose constitutional amendments, so the proposed amendment failed by 46 votes to move ahead toward ratification.

Last month, a majority of U.S. Senators voting on S.J. Res. 1, the Senate version of the FMPA, also voted for the marriage amendment, with 49 yeas and 48 nays. Again, the vote was far short (up to 18 votes) of the two-thirds required to propose a constitutional amendment.

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The 2006 votes in the House and Senate on the Federal Marriage Protection Amendment have great but subtle political and constitutional significance. Politically, both supporters and opponents of same-sex marriage have claimed victory in the congressional votes on the FMPA. Credible arguments can be made for both claims.

Advocates of same-sex unions emphasize that the votes in both houses were far below the two-thirds required to send proposed amendments to the states. The procedural context may have masked even greater opposition in the Senate. Also, there were fewer votes for the FMPA than some commentators had been predicting. These statements are completely accurate and support the conclusion that passage of an FMPA is not an immediate threat to the same-sex marriage movement. A federal proposed amendment is not likely to pass Congress in the near future (e.g., certainly not in the next 2-3, or perhaps 4-5 years).

On the other hand, no one expected that the FMPA would get two-thirds of the votes (or even to come close to that) in either house of Congress. The votes in the House and Senate this summer were meant to require elected members of Congress to take a yes-or-no stand on the issue in an election year. That was clearly a positive step forward for supporters of the Federal Marriage Protection Amendment.

Support for the FMPA in the House of Representatives in 2006 increased by nine votes over 2004, when 227 representatives (55%) voted for the 2004 version of the federal marriage amendment. Of the ten additional representatives to vote yea or nay on the FMPA in 2006, nine voted for the amendment. The trend of new votes is 90% in favor of a federal marriage amendment, and that suggests bright prospects for the amendment.

Likewise, more Senators voted for the FMPA in 2006 than against it (49-48), while in 2004 opponents won 48-50 (with 2 additional opponents abstaining). While Senate supporters of the FMPA picked up one more vote in 2006 than in 2004, opponents of the marriage amendment in the Senate lost two votes since the last vote (arguably lost four votes, if Kerry’s and Edwards’ 2004 abstentions are considered no votes). Moreover, many of those who opposed the FMPA expressed a “wait-and-see” or “states' rights” position that will probably lead most of them to support the FMPA if courts legalize same-sex unions or rule against the federal DOMA.

Compared to 2004, when 13 states passed state marriage amendments (SMAs) barring same-sex marriage in just a few months (most also prohibiting marriage-equivalent same-sex civil unions or domestic partnerships), and when voters in 11 states approved SMAs on the same day, the modest progress evident in the 2006 votes in Congress may create the perception that the movement for a federal marriage amendment is running out of steam. However, a more accurate description of what is happening is that the “easy” part of the same-sex marriage battles is over, and the slower, more hard-fought battles on the opponents’ political territory have begun.

“D-Day” for supporters of constitutional protection for marriage in America was November 3, 2004, when voters in nearly one-quarter of the states approved SMAs. It was a massive, impressive step towards ultimate victory, constitutionalizing marriage protection in most of the conservative states and signaling the beginning of a new phase of the same-sex marriage political wars. After more than ten years of steady gains for the same-sex marriage movement (beginning with the Hawaii Supreme Court decision in Baehr v. Lewin in 1993, and continuing after the Massachusetts Supreme Judicial Court decision in Goodridge v. Department of Public Health legalizing same-sex marriage in 2003), the overwhelming electoral rejection of same-sex marriage in 2004 was stunning. For more than one-fourth of the states to adoption constitutional rules banning same-sex marriage that year, with voter support for the amendments averaging 70%, was a major turn-around in momentum. It marked the beginning of the end of the political quest for national legalization of same-sex marriage.

After the 2004 state marriage amendments, the same-sex movement has continued to move ahead in a few places, and gay leaders have tried to regain the momentum. For example, a federal court in Nebraska declared Nebraska marriage amendment unconstitutional, the Connecticut legislature legalized “civil unions,” and trial judges in New York, California, and Maryland ruled in favor of same-sex marriage.

Yet generally in 2005 and 2006, the tide has continued to rise in favor of constitutional protection for same-sex marriage. The New York Court of Appeals decisively rejected same-sex marriage claims, as did intermediate appellate courts in Indiana and New Jersey, and a Connecticut trial court; the Georgia Supreme Court overturned a lower court ruling that held the Georgia SMA invalid; top courts in Tennessee and Massachusetts rejected gay activist attempts to invalidate and prevent voters from voting on proposed state marriage amendments; and the U.S. Court of Appe
als for the Eighth Circuit reversed on all counts the district court ruling that the Nebraska marriage amendment was unconstitutional. The political backlash against judicial activism legalizing same-sex unions has been heard by courts around the country. Moreover, since 2004 voters in three more states already have overwhelmingly approved state marriage amendments, and SMAs will be on the ballot in eight more states this Fall. Massive electoral rejection of same-sex marriage is expected.

Thus, the 2006 congressional votes with their modest gains for an FMPA are part of a broad movement for protection of marriage. That movement is growing, as the state focus and initiative strengthens. (The congressional votes may indicate preference for that venue.)

Constitutionally, the movement for a constitutional amendment protecting marriage in the United States is hardly novel. It has been happening for decades in other countries. Protection of marriage is a matter of basic human rights, and constitutional protection for marriage is the growing trend in international constitutional law.

Of the 191 sovereign nations in the world, 78 nations give explicit protection to marriage or family or both in their national constitutions. At least 32 nations have amended or written their constitutions to provide explicit constitutional protection for marriage as the union of a man and a woman. Conceptually (if not literally), those provisions are similar to the state marriage amendments or the FMPA in the USA.

The United States, which historically was the world leader in defining and protecting basic human rights, has fallen behind many nations in protecting the fundamental human right (and basic social institution) of marriage. The FMPA votes in Congress this summer represent an ongoing commitment to secure such human rights protection by constitutional amendment.

By the end of 2006, over half of the states will have state constitutional amendments protecting marriage. Even in Massachusetts, the people have repeatedly petitioned their unresponsive legislature to give voters the chance to vote on an amendment to ban same-sex marriage.

The House and Senate votes on the FMPA in 2006 are significant steps in the process of securing constitutional protection for the institution of marriage. While passage of a federal marriage amendment is not imminent, those congressional votes insure political accountability and show the slow but certain national progress of the movement for constitutional protection of marriage.

Lynn D. Wardle is Bruce C. Hafen Professor of Law at J. Reuben Clark Law School at Brigham Young University
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