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MARRIAGE AMENDMENT TO THE U.S. CONSTITUTION

BACKGROUND INFORMATION

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How the U.S. Constitution is amended:

The framers of the U.S. Constitution made it very difficult to amend the document. They may have feared that the government might want to strip away rights from a specific group of people because of irrational fear of, or hatred towards that group.

The amending process is contained in Article V of the Constitution:

bulletEither the House or the Senate must pass an amending bill, with more than a two thirds vote in favor.
bulletThe other body of the Congress would then have to pass the bill, again with a vote of two thirds or more in favor.
bulletThree fourths of the states would then have to ratify the bill.

It is extremely difficult to get 67% of senators or representatives to vote in favor of anything. It is even more difficult to get 38 states to ratify something. There would undoubtedly be major divisions, between Northern and Southern states; between agricultural and industrial states; between states dominated by conservative Christians, and states with a greater religious diversity, etc.

"It has been accepted that Congress may, in proposing an amendment, set a reasonable time limit for its ratification. Beginning with the Eighteenth Amendment, save for the Nineteenth, Congress has included language in all proposals stating that the amendment should be inoperative unless ratified within seven years." 1

There exists a second path for amendments, which involves the calling of a Constitutional Convention. However, "...it has never been successfully invoked" and it "is surrounded by a lengthy list of questions." 1

This essay continues below.

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Would a constitutional amendment be permanent?

The Marriage Amendment is being promoted as a permanent solution that will guarantee that the institution of marriage, and the benefits derived from marriage, will be forever restricted to opposite-sex couples.  The American Family Association, for example, writes: "The ultimate outcome of our coming national culture war over gay marriage will either be legal gay marriage throughout the United States, or passage of the Federal Marriage Amendment." 2

However, this may not be an accurate assessment. Constitutional amendments do have immense authority. But they are not necessarily permanent. A Marriage Amendment may be passed by Congress and ratified by sufficient states so that it becomes part of the U.S. Constitution. However, it can also be repealed through the same process.

The 18th Amendment prohibiting the consumption of alcohol is a prior example. In 1915, many Congressional candidates supported by the Anti-Saloon League were voted into office. On 1917-DEC-18, Congress passed the Amendment. In little over one year -- 1919-JAN-16 -- it was ratified by the states. The Amendment was partially successful; the average consumption of alcohol dropped from about 2.5 to 1 gallon per year. However, a movement began to form to repeal the Amendment. "Prohibition of alcohol was seen as an affront to personal liberty, pushed on the nation by religious moralists. Alcohol was also seen as a source of revenue for the local and national governments. The effort to elect "wet" legislators was as grand as that to elect "dry" ones almost two decades earlier. The Congress passed the [21st] amendment on February 20, 1933....the ratification process was complete on December 5, 1933. The 21st Amendment repealed the 18th, the first time an amendment had been repealed by another." 8

History might repeat itself with the proposed Marriage Amendment. If both houses of Congress and three out of four state legislatures were to mirror accurately the current desires of the public, then an Amendment could be ratified. However, there is a very strong age component in the public's perception of sexual orientation and same-sex marriage. The youth of the country are far more liberal than are the political leaders on this topic. They tend to accept homosexuality and bisexuality as normal and natural sexual orientations for a minority of adults. In a generation or so, present-day youth will become the political leadership of tomorrow. Any Marriage Amendment ratified early in the 21st century might well be repealed before 2030.

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What benefits, rights and privileges are granted to married couples?

The Federal Government's General Accounting Office identified federal laws which grant special benefits, rights and privileges to married couples. They were able to find over 1,000 federal benefits given to married couples. Individual states typically grant on the order of 400 additional benefits. All of these benefits, rights and privileges are "legal incidents" given to married couples. Under the proposed amendment, none of them could be extended to unmarried couples:

  1. Whether they are common-law couples who are simply living together, or couples who have registered their relationship with the state,
  2. Whether they are a same-sex, homosexual couple or an opposite-sex, heterosexual couple.
  3. Whether they have gone through a civil union ceremony at the local congregation affiliated with the Unitarian Universalist Association or the Metropolitan Community Church or other religious group.

Benefits include:

bulletGranting status as next-of-kin for hospital visits and medical decisions where one partner is too ill to be competent.
bulletAutomatic inheritance in the absence of a will.
bulletBereavement or sick leave to care for a partner.
bulletBereavement or sick leave to care for a child.
bulletProtections arising from a separation or divorce: e.g. community property and child support.

And many, many more. A surprising number relate to the protection of children of the relationship.  A partial list is at our essay on marital benefits. A complete list is available on the General Accounting Office's web site.  2

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Who is promoting the amendment?

A few of the main promoters of this bill are:

bullet Values Action Team (VAT): This is a group of federal legislators who promote conservative Christian values. It has been called an "inside-outside coalition" that links members of Congress with outside groups. They were formed in 1998 as an offshoot of the Values Summit of that year. 3 "Weekly meetings...now draw over 30 pro-family outside groups." 4 VAT operates from the office of GOP Majority Whip Tom DeLay.  According to the Boston Globe newspaper, VAT was formed to "coordinate legislative strategy with conservative groups that included the Christian Coalition, the Family Research Council and the National Right to Life Committee." They have been active in a number of areas:
bulletPromoting the Religious Freedom Amendment to permit organized prayer in public school classrooms.
bulletAbolishing funding for some groups, like the National Endowment for the Arts, which they feel promotes "filth," pornography and homosexuality.
bulletCriminalizing D&X abortion, sometimes called partial birth abortion.
bulletRemoving information on preventing sexually transmitted disease and pregnancy from sex-ed classes in public schools, allowing only information on sexual abstinence.
bulletPromoting display of the Ten Commandments in public schools and on government property.
bulletAllowing non-profit religious groups to endorse partisan political candidates, and funnel parishioner's donations into political campaigns. These are activities that the IRS does not currently permit for non-profit groups.
bulletAlliance for Marriage: This is a non-profit agency headed by Rev. Walter Fauntroy. It was identified by the Washington Times as "the organization behind the measure." It is supported by many Fundamentalist Christian advocacy groups and by "two of the largest African-American denominations in the United States, with more than 19 million members."
bulletAmerican Family Association (AFA): The AFA is a non-profit organization founded in 1977 by Don Wildmon. Their effort is primarily concentrated on what they feel are negative influences on society of television, other media, pornography, etc. . One of the issues that they have been promoting recently is the Marriage Amendment.
bulletFamily Research Council (FRC): James Dobson of the fundamentalist Christian organization Focus on the Family played a major role in the founding of the FRC in the early 1980s to "drive the national debate on family issues."  The FRC organized its Center for Marriage and Family Studies in 2003-APR to promote stronger heterosexual marriages by disseminating policy papers and other major publications, by sponsoring lectures, and by publishing their monthly E-mail newsletter "CultureFacts." 5
bulletMarriage Protection Week is an outreach of the American Family Association. Donald E Wildman, chairperson of the AFA has written: "Marriage Protection Week is our opportunity to defend and promote traditional marriage between a man and a woman as the God-ordained building block of the family and bedrock of a civil society. It's time to work together as we never have to protect marriage." Part of this movement to protect marriage is to continue to exclude same-sex couples from the institution.

The first Marriage Protection Week was held on 2003-OCT-12 to 18. It is expected to be a yearly observance. Many organizations are co-sponsoring Marriage Protection Week: American Association of Christian Schools, American Cause, American Family Association, Americans United for Life, American Values, Bott Broadcasting, Christian Coalition, Citizens for Community Values, Concerned Women for America, Coral Ridge Ministries, Eagle Forum, Empower America, Faith2Action, Family Research Council, Focus on the Family, Free Congress Foundation, HSLDA, INSP Broadcasting, National Religious Broadcasters, NCPCF, Prison Fellowship, Religious Freedom Coalition, SBC Ethics & Religious Liberty Commission, Smalley Relationship Center, Traditional Values Coalition, Truth in Love Outreach, University of the Family, USA Radio Network, and World Magazine.

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References:

  1. "Proposing a Constitutional Amendment," FindLaw,  http://caselaw.lp.findlaw.com/data/constitution/article05/02.html
  2. Letter from the General Accounting Office to Rep. Henry J Hyde, 1997-JAN-31, at http://www.gao.gov/archive/1997/og97016.pdf You need software to read these files. It can be obtained free from:
  3. "Religious group, house clique behind new marriage amendment," American Atheists' AAANEWS, 2002-MAY-22.
  4. "Values Action Team," Republican Study Committee, at: http://www.house.gov/
  5. "About FRC," at: http://www.frc.org/
  6. "Marriage Protection Week: October 12-18, 2003," American Family Association, at: http://www.marriageprotectionweek.com/
  7. "Marriage Protection Week: More information," American Family Association, at: http://www.marriageprotectionweek.com/
  8. Steve Mount, "The U.S. Constitution Online," (2003) at: http://www.usconstitution.net/

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Copyright 2002 & 2004 by Ontario Consultants on Religious Tolerance
Originally written: 2002-MAY-26
Latest update: 2004-MAY-1
Author: B.A. Robinson

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