Mandating Discrimination

Congress will vote again this week on legislation that seeks to add an amendment to the Constitution banning same-sex marriage.


Congress will vote again this week on legislation that seeks to add an amendment to the Constitution banning same-sex marriage. The Federal Marriage Amendment (H.J.Res. 88) comes on the heels of last month’s defeat of an identical amendment in the Senate (S.J.Res. 1).

The proposed amendment declares that “marriage in the United States shall consist only of the union of a man and a woman” and “neither the U.S. Constitution nor the constitution of any state shall be construed to require that marriage or the legal incidents of marriage be conferred upon any other union.”

The proposed amendment is both poorly conceived and inconsistent with core principles of American democracy. If ratified, this amendment would become the first amendment to write discrimination into the Constitution. Panelists at an event co-sponsored by the Center for American Progress and Cato Institute held last month also argued that the Federal Marriage Amendment threatens federalism by imposing federal legal interpretations on state legislatures and courts that have traditionally regulated family law, inhibiting state experimentation in formulating policy and trumping the wishes of state legislatures that seek to be responsive to the wishes of their citizens.

While religious denominations must be free to decide what constitutes religious marriage under the tenets of their faith, the states should be free to decide whether to recognize civil marriage for their gay and lesbian citizens.

The danger of “activist judges” defining marriage is an imagined threat. According to a Cato Institute report by professor Dale Carpenter, “The ‘threat’ from courts is more imagined than real.” Forty-five states have barred same-sex marriage by various means, and only one state has adopted same-sex marriage as a result of a court decision. On July 6, New York’s highest court declined to order the state to do so, further undercutting the claim that the amendment is needed. The real question is whether the states should have the opportunity to settle this matter in their own fashion, without federal interference.

In order to ratify an amendment, a two-thirds majority is needed in both the House and the Senate, as well as in three-fourths of the state legislatures. With only 49 Senators voting for last month’s amendment, and only 42 percent of the public supporting it, according to an ABC News poll, there is little chance that it will be added to the Constitution. It is time for the majority leadership in Congress to put aside its election-year antics and spend its time on real issues.

For more information on the Federal Marriage Amendment, see:




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