The Tempest

Not Exactly Shooting For \”Miss Congeniality\”

Church vs. State

Posted by Daniel on Tuesday, May 23, 2006

An interfaith coalition of clergy members and lay leaders announced a petition drive on Monday aimed at blocking a proposed constitutional amendment to ban same-sex marriage, known as the Federal Marriage Amendment.

The Senate Judiciary Committee passed the bill on a vote along party lines last week, and the full Senate is expected to vote on it the week of June 5.

About 35 representatives of the coalition, Clergy for Fairness, said at a news conference that more than 1,600 clergy members had signed an online petition against the amendment. The group’s Web site has postcards that lay people can print out and send to members of Congress.

By the end of this week, the site should have an electronic postcard as well, said Joe Conn, a spokesman for Americans United for Separation of Church and State, an organizer of the lobbying effort but not in the coalition.

Among those represented by the coalition are clergy members and groups affiliated with mainline Protestant churches; the Interfaith Alliance; Jewish groups including the Anti-Defamation League, the Union for Reform Judaism and the National Council of Jewish Women; Sikh groups; and the Unitarian Universalist Association of Congregations.

Four weeks ago, 50 prominent conservative Christian and Jewish leaders, including evangelicals and Roman Catholic cardinals and archbishops, signed a petition backing the amendment to prohibit same-sex marriage.

Those leaders also promised to distribute postcards to their congregants to urge support of the amendment. The Knights of Columbus alone is distributing 10 million postcards to Catholic churches.

Few experts expect the marriage bill to pass this year. But state campaigns to ban same-sex marriage drew large numbers of people to the polls in 2004, and conservatives hope to mobilize voters by raising the issue again.

Moderate and liberal religious groups have recently made an effort to raise their profile on many issues, including those involving personal morality that many Americans had considered the domain of conservative Christians.

The clergy members at the news conference on Monday said that although the groups opposing the amendment were not of one mind on homosexuality or same-sex marriage, passage of the amendment would give deference to a single point of view and would make the Constitution an instrument of discrimination against a class of citizens.

“When one group is singled out for discrimination, it’s not long before other groups will be singled out, too,” said Rabbi Craig Axler of Congregation Beth Or in Maple Glen, Pa. “It’s the first time we see the Constitution in danger of enshrining discrimination against one party, one class, and to remain silent as a Jew is unconscionable.”

Below is the text and effects of both the 2002 & 2004 proposals:


2002 Version

  1. Marriage in the United States of America shall consist only of the union of a man and a woman.
  2. 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.

2004 Version (H.J. Res. 106 (108th Congress 2004) and S.J. Res. 40 (108th Congress 2004)):

  1. Marriage in the United States shall consist only of the union of a man and a woman.
  2. 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 the union of a man and a woman.


2002 Version
The first sentence of the 2002 version would have provided an official definition of legal marriage in the United States. The second sentence went further by restricting how the courts are allowed to interpret federal and state anti-discrimination laws and constitutional amendments with regard to equal protection of non-married couples, regardless of sexual orientation. State laws would include local city and county ordinances, codes and regulations.

The legal consensus is that 2002 version would have barred state courts from requiring local governments to allow same-sex partners marriage or domestic partnership, or civil union status (“the legal incidents thereof”). This might have prohibited any court from ordering that homosexual couples be granted any of a long list of equal civil rights including joint parenting, adoption, custody, and child visitation rights, joint insurance policies, veteran’s benefits, and domestic violence relief such as restraining and protection orders.

It is unclear what effect the original version of the FMA would have had on the enforceability of state or local domestic partner or civil union laws. Many legal experts concluded that the second sentence of the original amendment would effectively prohibit states and local governments from passing laws granting civil unions, domestic partnerships, or other laws granting legal incidents of marriage by making such laws unenforceable in courts. Some supporters of the original wording disagreed.

2004 Version
The 2004 amendment would prohibit courts from interpreting any state or federal constitution to require same-sex marriage.

The first sentence of the FMA would prevent any state from allowing same-sex marriage, even if the voters of that state amended the state’s constitution to require recognition of same-sex marriages. Ratification of the amendment would cause the dissolution of existing same-sex marriages currently recognized in Massachusetts.

The 2004 version replaces the phrase “unmarried couples or groups” with “any union other than the union of a man and a woman.” As a result, the FMA would not overturn state laws that grant “legal incidents” of marriage to unmarried heterosexual couples, such as those in common law marriages.

Because the second sentence no longer refers to “state or federal law,” the Amendment would likely allow state or federal legislators or voters to enact legislation granting some of the “legal incidents” of marriage to same-sex couples. However, legal scholars question whether civil unions would be permitted under this revised language.


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