Congressional Power: Can They Amend Gay Marriage Rights?

The topic of same-sex marriage has been a contentious issue in the United States, with various state constitutional amendments and court rulings shaping the landscape of marriage rights for LGBTQ+ individuals. While some states have passed amendments limiting marriage to opposite-sex couples, others have recognized civil unions or domestic partnerships, falling short of offering the full protections and benefits of marriage. The Supreme Court's 2015 ruling in Obergefell v. Hodges was a landmark decision, establishing that the Fourteenth Amendment guarantees the fundamental right to marry for same-sex couples and requiring states to recognize these marriages. Despite this, some states still have constitutional amendments or state statutes in place that ban same-sex marriages, leading to ongoing legal and political debates. Congress has occasionally regulated marriage at the federal level, and the discussion around a potential Federal Marriage Amendment banning same-sex marriage in all states has resurfaced at various times, with polls indicating varying levels of support and opposition among Americans.

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The Federal Marriage Amendment

The FMA was introduced in the United States Congress multiple times: in 2002, 2003, 2004, 2005, 2006, 2008, 2013, and 2015. The original version, introduced in 2002, stated: "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." This proposal was written by the Alliance for Marriage and introduced in the House of Representatives by Representative Ronnie Shows (D-Miss.), with 22 cosponsors.

The 2003 version of the FMA failed to advance in Congress, leading Senator Wayne Allard to reintroduce the Amendment in 2004 with a revised second sentence. The 2004 version stated: "Marriage in the United States shall consist solely of the union of a man and a woman." Despite these efforts, the FMA failed to pass in Congress. The last congressional vote on the proposed amendment occurred in the House of Representatives on July 18, 2006, falling short of the required number of votes.

Public opinion on the FMA was mixed, with polls indicating varying levels of support and opposition across different years. While some polls showed a majority of Americans opposing the FMA, others suggested a closer divide or even a majority in favour, with a significant portion believing the issue should be handled at the state level.

It is important to note that the FMA is distinct from state constitutional amendments banning same-sex unions, which have been passed in many states. These state amendments, often referred to as "defense of marriage amendments" or "marriage protection amendments", have been invalidated by the Supreme Court's ruling in Obergefell v. Hodges in 2015, which held that state laws banning same-sex marriage are unconstitutional.

State-level constitutional amendments

Prior to the Supreme Court's decision in Obergefell v. Hodges in 2015, thirty-one state constitutional amendments banning legal recognition of same-sex unions were adopted. These amendments, referred to as "defense of marriage amendments" or "marriage protection amendments", defined marriage as a union between one man and one woman. Some states, like California, amended their constitutions to explicitly provide that "only marriage between a man and a woman is valid or recognized." Arizona and Minnesota are other examples of states that attempted to pass constitutional amendments banning same-sex marriage, but their efforts were rejected by voters.

The Supreme Court's ruling in Obergefell v. Hodges invalidated all state constitutional amendments that banned same-sex marriage, holding that the Fourteenth Amendment requires states to license and recognize marriages between two people of the same sex. This decision ensured marriage equality across the nation, regardless of sexual orientation.

However, even after the Obergefell decision, some states still have unenforceable constitutional amendments or state statutes that ban same-sex marriage. For example, Virginia began the process of removing its defunct ban in 2021, but Republicans blocked the change after retaking control of the House of Delegates. These remnants of anti-same-sex marriage sentiment highlight the complex political and social landscape surrounding marriage equality in the United States.

To protect the civil rights of all Americans to marry the person they choose, regardless of sexual orientation, Congress passed the Respect for Marriage Act (RFMA). This legislation includes protections for interracial and same-sex marriages and has been signed into law by President Joe Biden with bipartisan support. The RFMA ensures that religious liberties and conscience protections available under the Constitution or federal law remain intact while affirming the right to marry for all Americans.

Supreme Court rulings

The U.S. Supreme Court has the final say on constitutional matters. In its 2015 ruling in Obergefell v. Hodges, the Supreme Court clarified that the right to marry applies to same-sex couples, as protected by the Fourteenth Amendment. The Court's ruling determined that state laws banning same-sex marriage violate the Due Process Clause and the Equal Protection Clause of the Fourteenth Amendment, rendering them unconstitutional. This decision invalidated the remaining 14 same-sex marriage bans that were still being enforced in some states.

The Obergefell ruling built on previous Supreme Court decisions that advanced gay rights and same-sex marriage. In 1993, the Supreme Court of Hawaii ruled in Baehr v. Lewin that refusing to grant marriage licenses to same-sex couples was sex discrimination under the state's constitution. This decision, however, did not directly legalise same-sex marriage but empowered the state legislature to enact such a ban. In 2003, the Massachusetts Supreme Judicial Court's decision in Goodridge v. Department of Public Health legalised same-sex marriage in Massachusetts, setting a precedent for other states.

The Supreme Court's 2015 ruling in Obergefell was a significant milestone for marriage equality in the United States. The Court recognised marriage as an institution of both continuity and change, taking into account shifts in public attitudes towards gay individuals and same-sex marriage. This ruling ensured that same-sex couples would have the same rights as heterosexual couples under the Fourteenth Amendment, including the right to marry and to have their marriages recognised across state lines.

While the Obergefell decision established a nationwide right to same-sex marriage, some states have continued to introduce or maintain constitutional amendments or state laws that ban or restrict same-sex marriage. As of 2022, more than 30 states have such amendments or laws in place, according to the Congressional Research Service. However, these bans are unenforceable due to the Obergefell ruling. States like Virginia have initiated the process of removing these defunct bans from their state constitutions, facing opposition from conservative groups.

The Respect for Marriage Act (RFMA), passed by Congress and signed into law by President Joe Biden, further protects the civil rights of all Americans to marry, including interracial and same-sex marriages. This legislation was a response to concerns arising from the Supreme Court's decision in Dobbs v. Jackson Women's Health, which overturned Roe v. Wade and raised questions about the potential revisiting of previous rulings, including Obergefell. The RFMA ensures that religious liberties and conscience protections are upheld while safeguarding the right to marry for all Americans.

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Public opinion on same-sex marriage

In the mid-1990s, less than one-third of Americans supported the legalisation of same-sex marriage. However, by 2019, polling by the Pew Research Center found that 61% of Americans supported same-sex marriage, while 31% opposed it. This support has remained largely stable among both men and women, as well as across racial groups, since 2017.

The increase in support for same-sex marriage is partly attributed to generational change. Younger generations, such as Millennials and Generation Z, tend to be more accepting of same-sex relationships and have influenced the broader social and cultural landscape. As a result, political and cultural elites have become increasingly supportive of gay and lesbian rights, which may influence public opinion.

However, it is important to note that support for same-sex marriage varies across demographic groups. For example, Democrats and Democratic-leaning independents are more likely to support same-sex marriage than Republicans and Republican leaners. Additionally, religious affiliation plays a role, with religiously unaffiliated individuals expressing higher support for same-sex marriage than some religious groups.

While traditional public opinion polls may not capture the full picture due to social desirability bias, more specialised techniques, such as list experiments, have been employed to understand public sentiment accurately. These studies provide valuable insights into the evolving nature of public opinion on same-sex marriage and its impact on policymaking.

Religious liberty protections

The Respect for Marriage Act (RFMA) is a bill designed to protect same-sex marriage by codifying the Supreme Court's 2015 ruling in Obergefell v. Hodges. The bill does not require any state to authorise same-sex marriages within the state but mandates the recognition of same-sex marriages from other states. The act also prohibits the denial of full faith and credit or any right or claim relating to out-of-state marriages based on sex, race, ethnicity, or national origin.

The RFMA has been amended to include protections for religious liberty, which were not initially included in the bill. These protections were added due to concerns that the bill could threaten the tax-exempt status of religious non-profits and other religious organisations that object to same-sex marriage on religious grounds. The amended bill states that it does not:

• Affect religious liberties or conscience protections available under the Constitution or federal law
• Require religious organisations to provide goods or services to formally recognise or celebrate a marriage
• Affect any benefits or rights that do not arise from a marriage
• Recognise under federal law any marriage between more than two individuals

The bill's protections for religious liberty have been endorsed by several religious organisations and constitutional scholars, including the Church of Jesus Christ of Latter-day Saints, the National Association of Evangelicals, and Douglas Laycock, a University of Virginia Law School professor who is a leading authority on religious liberty issues.

While some have criticised the bill as a compromise that does not fully satisfy either side of the debate, it has been praised by others as a step towards achieving the civility necessary for a pluralistic society to thrive.

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