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July 14, 2004: Federal Marriage Amendment rejected by Senate

ON THIS DAY IN 2004…

The Federal Marriage Amendment failed to win a Senate supermajority, forcing backers to shift their focus to state-level amendments nationwide.


For three years, proposals to amend the U.S. Constitution to declare “marriage in the United States shall consist only of the union of a man and a woman” had circulated on Capitol Hill, but they had never before come up for a vote. The first proposal to that effect was introduced in the House in 2002 by Mississippi Democrat Ronnie Shows, and then reintroduced the next year by Colorado Republican Marilyn Musgrave. In May 2003, Senate Majority Leader Bill Frist endorsed the measure.


But President George W. Bush, despite his repeated declaration that he was opposed to same-sex marriage, would not commit to changing the Constitution. A cadre of prominent religious conservatives, at the invitation of the American Family Association’s Don Wildmon, organized themselves as the Arlington Group in the spring of 2003 to coordinate their efforts on the issue. That October, they launched a Marriage Protection Week largely to pressure the White House to back the amendment.


Yet even as they succeeded in drawing public attention to the idea of changing the Constitution the members of the Arlington Group lost any consensus about what a new amendment should say. Hard-liners argued that if they were going to the trouble of trying to amend the Constitution, they should also write it in such a way that blocked not only same-sex marriages but civil unions (like those introduced in Vermont in 2000) and domestic-partnership benefits (as California enacted in September 2003). Opponents of such an expansive approach argued that it would complicate the group’s ability to win over otherwise friendly to Republicans, including Bush, who said he believed states should have the right to recognize gay couples in any way short of marriage. Other disputes within the group focused on whether the language should preclude state legislatures from taking such action to introduce those benefits, or merely attempt to block judges from claiming a right to them already existed in either the federal or a state’s constitution.


These debates were largely pushed to the side once a Massachusetts court ruled in November 2003 that gay couples would be permitted to legally marry there starting the following May. One week after that ruling, Colorado Senator Wayne Allard introduced a version of the House’s more modest amendment. Still some within the Arlington Group insisted that endorsing any proposal that would leave open legal avenues to “faux marriage,” as former Education Secretary Bill Bennett called it, would represent a capitulation. “If you don’t get your act together, the White House won’t commit,” argued the Heritage Foundation founder Paul Weyrich, who tried to bring the factions together.


Ultimately external events forced Bush’s hand. In mid-February, a rush of local officials nationwide, led by San Francisco Mayor Gavin Newsom, began issuing marriage licenses in defiance of state law. This “lawlessness,” Bush argued, necessitated federal action in the form of the Federal Marriage Amendment. Republican National Committee chairman Ed Gillespie said the party would likely endorse the proposal in its platform that summer. Any hope for a more hard-line amendment was dead.


On July 14, the matter finally came before the Senate. Allard’s amendment won 48 votes in the Republican-controlled chamber, far short of the 60 votes necessary to end debate and even farther from the 67 that would be necessary to send an amendment out to ratification by the states. A handful of conservative Democrats, led by former leader Robert C. Byrd, voted for the amendment, while moderate Republicans including former and future presidential candidate John McCain voted nay. The two senators who missed the vote were conspicuous by their absence: the Democratic presidential ticket of John Kerry and John Edwards.


Members of the Arlington Group began to focus their attention on what they had always seen as a fallback option to a federal amendment: writing the traditional definition of marriage into as many state constitutions as possible. Over the course of the summer and fall, thirteen would pass such amendments. In 2015, the U.S. Supreme Court would rule them all unconstitutional.


The Engagement:
America's Quarter-Century
Struggle Over Same-Sex Marriage

​By Sasha Issenberg

The riveting story of the battles over gay marriage
in the United States – the most important
civil-rights breakthrough of the new millennium.

ENGAGE US

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