In the first two posts on of marriage versus civil unions here, and here, I've talked a little about the fact that marriage is almost exclusively a state matter, and how the Defense of Marriage Act (DOMA) was enacted out of fears that if same-sex marriage was recognized in one state, all other states would have to follow suit.
Despite the passage of DOMA there were those on the far right who didn't think it went far enough because if the federal courts declared DOMA unconstitutional then they belived that same sex marriage could spread unchecked throughout the states once it became legal in just one. For them, only a federal constitutional amendment would put an end to such a possibility. But that possibility remained theoretical until the Massachusetts Supreme Judicial Court, citing that state constitution's equal protection clause, said that limiting marriage to opposite sex couples was unconstitutional.
That event was the energizing point for the push to amend the U.S. Constitution. Because that effort has a very direct impact on the current effort to amend the Indiana constitution using similar language, I'm going to go a bit more into detail concerning its evolution than might otherwise be necessary. I hope you non-Hoosier readers don't mind, and will make the jump too.
As outlined in a series of articles in early 2004 by Alan Cooperman of the Washington Post, a group known loosely as "The Arlington Group", representing the spectrum of organizations forming the Religious Right and its allies, met in 2003 to decide on what a federal constitutional amendment should do, and then draft language as to how to accomplish it. What they ultimately came up with was first called the Federal Marriage Amendment (FMA), later termed the Federal Marriage Protection Amendment. Since most still use the former term and "FMA", that's what I'll continue to use.
They all were in agreement on one thing: Marriage in the United States was to be defined only as between one man and one woman. No same-sex marriages could be created or recognized by the federal government or any state. Period. That concept was pretty straightforward, and so was the first sentence: "Marriage in the United States shall consist only of the union of a man and a woman."
Although some have said that the term "union", without more, is nebulous, even opponents generally agree that the concept of a marital union has such a long standing connotation as to the legal relationship involved that few consider the first sentence anything but clear. But the second sentence has not been treated nearly so kindly.
Why was a second sentence necessary at all given the sweeping result the first sentence would achieve nationwide? The Arlington group was of one mind that despite the restrictive language of the first sentence, both federal and state "activist" judges could still find ways around it and effectively impose the status, rights and benefits associated with marriage upon same-sex couples. Call it full or partial civil unions or something else, they simply wanted to keep the judiciary from imposing marriage by another name.
Some groups, notably the Concerned Women of America (CWA) and some more fundamentalist religious organizations, were adamant that not only should JUDGES be kept from imposing marriage equivalents, but Congress and the state LEGISLATURES themselves should be barred from doing so. But others were uneasy about restricting lawmakers. Whether or not a real consensus was reached by the two sides on what was intended isn't clear, despite later claims to the contrary, but the version of the second sentence first introduced into Congress in 2003 read as follows:
"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."
Notice that what couldn't be "construed" was both the U.S. and all state constitutions AS WELL AS federal laws passed by Congress and state laws passed by state legislatures. Some conservatives claimed that the language still allowed Congress and the state legislatures to pass laws conferring marriage-like benefits outside of marriage. Other conservatives insisted that since courts were mandated to find non-conforming laws unconstitutional, the legislatures were essentially muzzled along with the judges. Most observing legal scholars said the language was less than clear on the matter.
The original FMA failed by a wide margin in Congress in 2003. In early 2004, President Bush, while endorsing the FMA, came down clearly on the side of those saying that state legislatures ought to be free to enact civil unions, etc., if they wanted to. Only "activist judges" ought to be targeted. Then one of the main drafters in the Arlington Group, former U.S. Appeals Court Judge Robert Bork, went before a Congressional Committee and said that the proposed amendment had been "poorly drafted". The ultra-strict constructionist urged adoption of a change to remove any doubt that legislative power would be preserved. As a result, Colorado Republican Representative Linda Musgrave and former Colorado Senator Wayne Allard endorsed the following amended language of the second sentence, which was introduced into Congress in mid-2004:
"Neither this Constitution or the constitution of any State shall be construed to require that marital status or the legal incidents thereof be conferred upon a union other than the union of a man and a woman."
This has been a longer than usual post, and I'm going to stop here today but not before first urging you to go back and review the first (2003) version of the second sentence and then the revised (2004) one. Note what's been DELETED: "NOR STATE OR FEDERAL LAW". A BIG deletion! And one with huge significance to Indiana because it was the DISCARDED version, and NOT the revised one, that SJR7 was patterned after in 2005. I'll be talking about the critical importance of that in the Hoosier debate over SJR7 in the days ahead.
(By the way, in case you're wondering, I haven't forgotten about the POTUS part of the title to this series, and will get back to the matter of how what presidential hopefuls say about marriage versus civil unions after a few more bits of history.)