Civil Marriage Is Currently Defined

¶ … civil marriage is currently defined by state law. According to the Federalist principles underlying the creation of the union, individual states have the right to define the legal parameters of marriage: "the state is free to set limits to the circumstances in which marriage may be permitted, and judicial interpretation thereof," ("Federal Marriage Amendment" 2004). The federal government cannot offer a blanket definition of marriage. However, a proposed amendment to the Constitution of the United States: H.J. Res 56, would place universal parameters on the definition of the social institution. Also called the Federal Marriage Amendment, the proposal reads: "Marriage in the United States shall consist only of the union of a man and a woman. 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," ("Federal Marriage Amendment" Section One, cited by Longley 2004). Support for H.J. Res 56 is relatively strong. Its proponents seek primarily to prevent gays and lesbians from being able to legally marry.

The current proposal for the "Amendment for Total Equality" calls for an amendment to the United States Constitution that would fundamentally replace the Federal Marriage Amendment. Like the Federal Marriage Amendment, the Amendment for Total Equality contains two clauses:

1. Marriage, with all the legal rights and benefits thereof, in the United States shall include the unions of same-sex as well as heterosexual couples.

2. Neither this constitution, nor the constitutions of any state, nor state or federal law, shall be construed to restrict conferring the legal status of marriage on same-sex couples, with all the civil rights and benefits thereof.

The Amendment for Total Equality would guarantee the rights of all citizens to the legal rights and benefits of marriage and seeks to prevent and ultimately eliminate legal discrimination against homosexuals. The Amendment for Total Equality is grounded on some of the fundamental principles already set forth in the American Constitution, including the guarantee of rights, freedoms, and privileges by all citizens of the United States. It is our belief that the Federal Marriage Amendment represents a repudiation of the rights and freedoms already granted to all citizens in the Constitution, while the Amendment for Total Equality represents a codified assurance of equal rights, civil liberty, and equal protection.

Article V of the United States Constitution sets forth the official guidelines for amendments. It reads:

The Congress, whenever two thirds of both Houses shall deem it necessary, shall propose Amendments to this Constitution, or, on the Application of the Legislatures of two thirds of the several States, shall call a Convention for proposing Amendments, which, in either Case, shall be valid to all Intents and Purposes, as part of this Constitution, when ratified by the Legislatures of three fourths of the several States, or by Conventions in three fourths thereof, as the one or the other Mode of Ratification may be proposed by the Congress

There are two routes by which the proposed Amendment for Total Equality may be passed. The first route entails that the House and the Senate must each ratify the proposed Amendment by a two-thirds majority. Then the bill must be ratified by three-fourths of the states' legislatures within a reasonable time period. The second method would be for the creation of a Constitutional Convention to hear and propose the amendment to the states; this method also requires three-fourths of the state legislatures to approve the amendment. This second procedure has never before been used to amend the U.S. Constitution. In either case, however, it would take a number of years before the Amendment for Total Equality would become law. Furthermore, consitutional amendments are historically rare, and the proposals signficantly outnumbers the legal amendments. Several steps can be taken to ensure the timely implementation of this much-needed constitutional amendment.

Proponents of the proposed Amendment for Total Equality have a steep uphill battle to climb. The tide of the nation's moral and political philosophies currently supports a restriction of the rights of homosexuals. With a Republican majority in both houses of Congress as well as in the Executive branch of government, the Amendment for Total Equality will suffer major political blows. The main opponents of the Amendment for Total Equality include Christian groups whose lobbying force has become politically powerful in recent years.

However, proponents of the Amendment for Total Equality include civil rights groups such as the American Civil Liberties Union, which also constitutes a powerful lobbying force. Gay rights groups will generally support the Amendment for Total Equality, as will residents of states like Massachusetts that already ensure the rights of gays and lesbians to marry.