Federal Marriage Amendment

The Federal Marriage Amendment (FMA) (also known as the Marriage Protection Amendment) is a proposed amendment to the United States Constitution which would define marriage in the United States as a union of one man and one woman. The FMA also would prevent judicial extension of marriage rights to same-sex or other unmarried couples, as well as preventing people from having multiple spouses. The most recent vote to take place on the proposed Amendment occurred in the United States House of Representatives on July 18, 2006 when the Amendment failed 236 yea to 187 nay votes, falling short of the 290 yea votes required for passage. The Senate has only voted on cloture motions with regards to the proposed Amendment, the last of which was on June 7, 2006 when the motion failed 49 yea to 48 nay votes, falling short of the 60 yea votes required to proceed to consideration of the Amendment.

The role of states
In the United States, civil marriage is governed by state law. Each state is free to set the conditions for a valid marriage, subject to limits set by the state's own constitution and the U.S. Constitution. In fact, "[T]he State . . . has absolute right to prescribe the conditions upon which the marriage relation between its own citizens shall be created, and the causes for which it may be dissolved," Pennoyer v. Neff, 95 U.S. 714 (1877). Traditionally, a marriage was considered valid if the requirements of the marriage law of the state where the marriage took place were fulfilled. (First Restatement of Conflicts on Marriage and Legitimacy s.121 (1934)). However, a state can refuse to recognize a marriage if the marriage violates a strong public policy of the state, even if the marriage was legal in the state where it was performed. (Restatement (Second) Of Conflict of Laws § 283(2) (1971).) States historically exercised this "public policy exception" by refusing to recognize out-of-state polygamous marriages, underage marriages, incestuous marriages, and interracial marriages. Following these precedents, nearly all courts that have addressed the issue have held that states with laws against same-sex marriage can refuse to recognize same-sex marriages that were legally performed elsewhere.

Same-sex marriage is currently legal in two U.S. states. In 2003 and 2008, the Massachusetts and California Supreme courts ruled in Goodridge v. Department of Public Health and In Re Marriage Cases that the states' constitutions required the state to permit same-sex marriage. Both decisions could be reversed by an amendment to the state constitution; to date, no such amendment has successfully been passed in Massachusetts or California. On June 2, the California Marriage Protection Act qualified for the 2008 General Election ballot. If approved by California voters, it would amend the California Constitution to provide that "Only marriage between a man and a woman is valid or recognized in California." Several other states including Vermont, California, New Jersey, Washington, Oregon, Connecticut, and New Hampshire allow same-sex couples to enter into civil unions or domestic partnerships that provide some of the rights and responsibilities of marriage under state law. Twenty-six states have passed state constitutional amendments defining marriage as being between one man and one woman.

Federal statutes regulating marriage
Although individual U.S. states have the primary regulatory power with regard to marriage, the United States Congress has occasionally regulated marriage. The 1862 Morrill Anti-Bigamy Act, which made bigamy a punishable federal offense, was followed by a series of federal laws designed to end the practice of polygamy. In 1996 as a reaction to a state level judicial ruling prohibiting same-sex couples from marrying that may violate Hawaii's constitutional equal protection clause (Baehr v. Miike, 80 Hawai`i 341), Congress passed the Defense of Marriage Act (DOMA), which defines marriage as a legal union of one man and one woman for the purpose of interpreting federal law. Under DOMA, the Federal government does not recognize same-sex marriages or civil unions, even if those unions are recognized by state law. For example, members of a same-sex couple legally married in Massachusetts cannot file joint Federal income tax returns even if they file joint state income tax returns.

The United States Constitution and federal courts
Federal courts have interpreted the U.S. Constitution to place some limits on states' ability to restrict access to marriage. In Loving v. Virginia, the United States Supreme Court overturned state marriage laws that barred interracial marriages on the basis that marriage is a "basic civil right..." and that "...the freedom to marry, or not marry, a person of another race resides with the individual and cannot be infringed by the State." The Supreme Court struck down a 1992 Colorado constitutional amendment that explicitly denied homosexuals equal protection in Romer v. Evans.

Some circuit courts have upheld state constitutional amendments banning same-sex marriage. Notable among these cases was the 8th Circuit Court of Appeals' affirmation of Nebraska's constitutional amendment which defines marriage as between a man and a woman, and states that unions of two people in a same-sex relationship as marriage or similar to marriage shall not be valid or recognized in Nebraska.

The most important Federal decision on same-sex marriage to date was the 1972 summary decision of the United States Supreme Court in Baker v. Nelson. When the issue of same-sex marriage came before the Court in 1972, it was dismissed for "want of a substantial federal question". Unlike a denial of certiorari, a dismissal for "want of a substantial federal question" constitutes a decision on the merits of the case, and as such, is binding precedent on all lower Federal Courts. Baker has been cited as binding precedent in numerous lower court decisions since, and unless over-ruled, remains the law of the land in regard to this issue.

Legislative history
The Federal Marriage Amendment has been introduced in the United States Congress four times: in 2003, 2004, 2005/2006 and 2008.

2002
The original Federal Marriage Amendment, written by the Alliance for Marriage, was first introduced in the 107th United States Congress in the House of Representatives by Democratic Representative Ronnie Shows (D-MS) with 22 cosponsors.

2003
The original proposed Federal Marriage Amendment was written by Alliance for Marriage with the assistance of Judge Robert Bork, Professor Robert P. George of Princeton University, and Professor Gerard V. Bradley of Notre Dame Law School. It was first introduced in the House of Representatives by Rep. Marilyn Musgrave (R-Colo.) on May 21, 2003 and consisted of two sentences.

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.

The bill was designated H.J.Res.56 in the House and was immediately referred to the House Committee on the Judiciary. On June 25, 2003, it was referred to the Subcommittee on the Constitution, where hearings were held on May 13, 2004. The bill was introduced in the Senate by Senator Wayne Allard (R-Colo.) on November 25, 2003 and designated S.J.Res.26. It was immediately referred to the Senate Committee on the Judiciary.

2004
When the 2003 version of the FMA failed to advance in the legislature, Senator Allard re-introduced the Amendment on May 22, 2004 with a revised second sentence. Rep. Musgrave re-introduced the Amendment in the House on September 23, 2004 with the same revision.

The 2004 version of the Federal Marriage Amendment stated:

Marriage in the United States shall consist solely of the union of a man and a woman. 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.

The bill was designated S.J.Res.30 in the Senate and was immediately referred to the Senate Committee on the Judiciary. When the bill became stuck in committee, Senator Allard re-introduced the Amendment in the Senate on July 7, 2004 where it was designated S.J.Res.40. The bill was subject to a filibuster: on July 9, 12, 13, and 14, the motion was made to proceed to consideration of the measure. On July 14, 2004, a cloture motion to force a direct vote on the FMA was defeated in the Senate by a margin of 50 nay votes to 48 yea votes. The two missing votes were those of John Kerry and John Edwards, who chose to remain on the Presidential campaign trail. The 48 votes in support of the cloture motion were 12 votes short of the 60-vote supermajority (three-fifths) needed to end debate and force a vote on the Amendment itself. A number of Republicans joined Democrats in voting against the cloture motion, citing concerns about the Amendment's wording and the principle of extending federal power into an area of policy traditionally managed by states. On July 15, 2004, the motion to proceed to consideration of the Amendment was withdrawn in the Senate.

The bill was designated H.J.Res.106 in the House and was immediately referred to the House Committee on the Judiciary. On September 28, 2004, rules were recommended by the House Rules Committee with regards to debate and voting on the proposed Amendment. The rules were passed on September 30. The resolution was immediately considered. Passage of the proposed Amendment failed 227 yea votes to 186 nay votes, where 290 yea votes (two-thirds) are required for passage of a proposed Constitutional amendment.

2005/2006
On January 24, 2005, Senator Allard introduced the Marriage Protection Amendment, which was the 2004 version of the Federal Marriage Amendment verbatim, with 21 Republican co-sponsors. In 2006, Rep. Musgrave introduced the Marriage Protection Amendment in the House. The Marriage Protection Amendment stated:

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

The bill was designated S.J.Res.1 in the Senate and was immediately referred to the Senate Committee on the Judiciary. On November 9, 2005, the Subcommittee on Constitution, Civil Rights and Property Rights approved the bill for consideration by the full Judiciary Committee. On May 18, 2006, the Judiciary Committee reported to the Senate and the bill was placed on the legislative calendar. The motion to proceed to the measure was first made on June 5, 2006. A cloture motion on the motion to proceed was then presented in Senate. On June 6 and 7, the motion to proceed to the measure was again considered in the Senate. On June 7, a cloture motion to force a direct vote on the Marriage Protection Amendment was defeated in the Senate by a margin of 49 nay votes to 48 yea votes, with the vote mostly following party lines with Democrats opposing and Republicans in favor. The 48 votes in support of the cloture motion were 12 votes short of the 60-vote supermajority (three-fifths) needed to end debate and force a vote on the Amendment itself. Eight Republican Senators opposed or did not vote; four Democratic Senators favored or did not vote. The only Senators who changed their position from the 2004 vote to the 2006 vote were Senators Judd Gregg and Arlen Specter, both of whom voted Yea in 2004 and Nay in 2006.

The bill was designated H.J.Res.88 in the House and was immediately referred to the House Committee on the Judiciary. On July 17, 2006, rules were recommended by the House Rules Committee with regards to debate and voting on the proposed Amendment. The rules were passed on July 18. The resolution was immediately considered. Passage of the proposed Amendment failed 236 yea votes to 187 nay votes, where 290 yea votes (two-thirds) are required for passage. The motion to reconsider was immediately laid on the table and agreed to without objection. Twenty-seven Republican Representatives opposed the FMA; thirty-four Democrats voted in favor of the FMA and one Independent voted against the FMA in the vote on July 18, 2006 in the House.

2008
On June 25, 2008 Senator Roger Wicker introduced the Marriage Protection Amendment, which was the 2004 version of the Federal Marriage Amendment verbatim. The Marriage Protection Amendment stated:

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

2003 version
The first sentence of the 2003 Amendment would have provided a Federal definition of legal marriage in the United States.

The second sentence would have restricted how the courts were 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 be defined to include local, city and county ordinances, codes and regulations.

The legal consensus is that the 2003 version of the FMA would have barred state courts from requiring local governments to allow same-sex couples marriage, civil union or domestic partnership status. It also might have prohibited the granting of any of the civil rights and responsibilities of marriages to any unmarried couple, including responsibilities regarding 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 2003 version of the FMA would have had on the enforceability of state or local domestic partner or civil union laws. Some legal experts concluded that the second sentence would effectively prohibit states and local governments from passing laws granting civil unions, domestic partnerships, or other similar laws by making such laws unenforceable.

2004 version
The first sentence of the 2004 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 2004 amendment would have caused the dissolution of existing same-sex marriages recognized in Massachusetts.

The 2004 Amendment replaced 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 male-female couples, such as those in common law marriages.

The second sentence of the 2004 version no longer referred to "state or federal law" allowing flexibility such that it would likely have allowed state or federal legislators or voters to enact legislation granting some of the "legal incidents" of marriage to same-sex couples. Some legal scholars still questioned whether civil unions would be permitted under this revised language.

The 2004 version of the FMA would prohibit courts from interpreting any state or federal constitution to require same-sex marriage.

2005/2006 version
The 2005/2006 version of the Federal Marriage Amendment, titled the Marriage Protection Amendment, is word-for-word the same as the 2004 Federal Marriage Amendment, with the exception of its title. Subsequently, the same legal implications exist for the 2005/2006 version as the 2004 version of the FMA.

Bush administration's stance
Bush told the Washington Post that although he still supported the amendment, he would not lobby heavily for the passage because he believed that until a federal court overturned the Defense of Marriage Act, there would not be enough votes for passage. Vice President Dick Cheney has neither endorsed nor condemned the FMA, arguing that same-sex marriage is an issue for the states to decide.

On January 25, 2005, according to the New York Times, Bush told a privately invited group of African-American community and religious leaders that he remained committed to amending the Constitution to "ban same-sex marriage". Over the course of the next two days, it was revealed by the Washington Post and USA Today that the Bush Administration had paid columnists to promote its views. The Department of Health and Human Services paid Maggie Gallagher $21,500, and Mike McManus $49,000, to write syndicated news columns endorsing the FMA. Additionally, Gallagher also received $20,000 in 2002 and 2003 to write a report on government initiatives to strengthen marriage. McManus leads a group called "Marriage Savers" promoting marriage as defined between a man and a woman.

The FMA has been a somewhat divisive issue within the Republican Party, dividing them by region. Northeastern Republicans generally oppose the amendment while Southern and Midwestern Republicans generally support it.

Influence on 2004 presidential election
There is much debate about the degree to which the Federal Marriage Amendment influenced the 2004 U.S. Presidential Election.

By the time Americans went to the polls, both John Kerry and George W. Bush had somewhat similar positions on gay marriage, opposing the extension of marriage rights to same-sex couples and supporting states' rights on civil unions, although Kerry opposed the Federal Marriage Amendment and affirmatively supported civil unions, while Bush supported the Federal Marriage Amendment to ban same sex marriage, he was not opposed to states enacting their own civil union legislation.

Previously, on February 24, 2004, Bush called for an amendment which would have outlawed gay marriage, and which would have disallowed state constitutions from recognizing or enforcing gay civil unions. Although this fact was not widely publicized outside of the gay press, Bush's statement included a requirement that any amendment "leav[e] the state legislatures free to make their own choices in defining legal arrangements other than marriage." The White House partly clarified Bush's position in a February 24 2004 press conference with White House Press Secretary Scott McClellan, who stated that by calling on the FMA to permit states the possibility of creating other "legal arrangements," Bush specifically meant to permit states the possibility of enacting civil unions. (McClellan also stated, however, that Bush did not personally support civil unions.) Similarly, at the February 25 2004 press conference, McClellan stated that the White House intended to work with Congress to develop language for the FMA that permitted states to enact civil unions. Although Bush frequently spoke about FMA on the campaign from February and November 2004, he avoided mention of the phrase "civil unions" until an ABC News interview of October 26 2004, aired one week before the election.

The FMA's Republican co-sponsors, Senator Wayne Allard (R-CO) and Representative Marilyn Musgrave (R-CO), announced new language for the proposed amendment on March 23, 2004, replacing the second sentence of the amendment with ""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." Both Allard and Musgrave called the change purely "technical." Though the new language would have allowed hypothetical civil unions to be enacted by state legislatures, some fear it would have prevented both federal and state constitutions the ability to uphold such laws. In other words, states could enact civil unions, which could have been in turn struck down by court cases relying on the interpretation of the revised FMA language, or so the reasoning goes. Such reasoning is considered far fetched by many, however, since of the myriad laws in effect today, virtually none are construed as "required" by any state or federal constitution, yet the courts do not seem to strike these laws down. For example, neither federal nor state constitutions can be construed as requiring parking meters, nevertheless courts uphold their use every day.

According to James Dobson, founder of Focus on the Family, the President (speaking through a White House spokesman) agreed with the re-worded amendment. At no point after March 23 2004 did President Bush voice disagreement with the language of the FMA as it was considered and subsequently voted on by the Senate and House of Representatives.

Pundits alleged in the week before the 2004 election that Bush had changed his mind, that he was expressing support of individual states' rights to permit civil unions in a statement made on October 26, 2004. Before October 26 2004, however, Bush had never personally voiced support for states' rights to "civil unions," and avoided all mention of an exception for "civil unions" when speaking about the FMA during his 2004 political campaign. The true meaning of the October 2004 statement remains to be seen, and since his re-election, Bush has avoided mention of support for states' rights to civil unions. By contrast, although Kerry supported a Massachusetts State Amendment to traditionally define marriage, he did not support the Federal Marriage Amendment nor a ban on civil unions. Kerry has voiced personal support for civil unions, while George Bush opposed them as Governor of Texas and has never said that he personally supports them (only that he would no longer deny an individual state the right to permit them).

Opponents of the FMA claim polling of the public has shown a cautious response, with many polls indicating opposition, even in states such as Arizona and Colorado which are normally thought of as socially conservative. They cite Pew Research Center exit polls from the 2004 elections finding that 25% of polled voters support same-sex marriage and another 35% support civil unions. Since FMA opponents claim the amendment bans civil unions they conclude that the FMA is not widely accepted.

While many Democrats believe that the Federal Marriage Amendment was a tool utilized by Bush and Karl Rove to get votes, it is estimated that 12% of Bush voters support same-sex marriage and over 50% support civil unions. This suggests that the voting base for the Republican party has a far more divided position on this issue than is often perceived.

On the other hand, of the 11 states in which same-sex marriage amendments were on the ballot, all passed handily. Bush won in nine, including Ohio. Interpretation of some exit polling suggests that the amendments may have brought out one million additional voters, most of which came out for the first time to cast their ballots for Bush. Notably, a vast majority of these states have not voted for a Democrat in many years. The two states that Bush did not win, Michigan and Oregon, still passed amendments barring same-sex marriage.

However, Roberta Combs, President of the Christian Coalition of America claims, "Christian evangelicals made the major difference once again this year." In the 2000 Presidential Election, there was some speculation that many evangelicals did not go to the polls and vote because of the October surprise of George W. Bush's drunk-driving arrest record. In a dozen swing states that decided the presidential election, moral values tied with the economy and jobs as the top issue in the campaign, according to Associated Press exit polls. The question of what "moral values" means is open, however, to much interpretation. Take, for example, the state of Minnesota, where voters ranked moral values as their highest priority. Even so, Kerry still won the state.

Many people insist that the popularity of moral issues in the election was a consequence of voter affirmation for Bush policies. Additionally they claim that so-called moral issues are the clumping of topics that by default appeal to the GOP's base of voters, especially considering Bush's positions on the War on Terrorism. According to a Pace University Poll, most voters who voted with moral issues as a principal concern were happy with the state of the economy and also were early deciders in the Presidential race for Bush: 75% of new voters were self-declared Republicans, 68% were Southerners, and 67% were evangelicals.

Others claim that moral issues did not cause Bush's victory, since most Americans are amenable to allowing some benefits for same-sex couples. But the way the Federal Marriage Amendment was introduced, specifically forcing an "all or nothing" approach to the issue, may have benefited the GOP.

Arguments against the Federal Marriage Amendment
''This section contains arguments specific to the Federal Marriage Amendment. For arguments for and against same-sex marriage in general, see Same-sex marriage''

Federalism
Opponents of the FMA argue that it would violate the states' rights to regulate marriage by federalizing the issue, which they say should be left to the states. Many liberals have used the federalism argument, including Senator John Kerry, Senator John McCain, and paleolibertarians like Lew Rockwell and Representative Ron Paul, who, while opposing the FMA, oppose gay marriage. Constitutionally defining marriage would not only remove the states' choice, but it would reverse the choices already made in some states, i.e., Massachusetts, Vermont, Connecticut, California, New Jersey and Maine.

Civil rights
Opponents of the FMA say that it would be only the second Constitutional amendment to restrict, rather than expand, the civil rights of individuals in the United States. The first was the 18th Amendment on prohibition, which was later repealed by the 21st Amendment. Some people consider some other amendments such as the 16th and the 22nd to be restrictions on civil rights as well.

Unmarried heterosexual couples
It is argued that the 2002 version of the FMA would have severely affected the ability of heterosexual unmarried couples to seek some degree of legal protection and/or provisions.

Opponents of the FMA argue that it may complicate efforts to enforce laws against domestic abuse in heterosexual relationships involving unmarried couples. They note that two Ohio courts ruled that Ohio's similar amendment made the state's domestic violence laws unconstitutional as applied to unmarried couples, because they created a "quasi-marital relationship". (although the decisions were later reversed). Supporters of the FMA assert that this argument was an invalid scare tactic from the outset and that the FMA would not prevent laws against domestic abuse from being applied to unmarried couples. Ohio's Domestic Violence Statute was written in a unique manner. No other State has a Domestic Violence Statute written in the same manner. It would have been legally impossible for Courts in other States to reach the same result as the two Courts in Ohio did. Additionally, even in Ohio, 8 of the 10 Ohio Courts that addressed the effect of the State Amendment on Domestic Violence Laws found no conflict. Additionally several Attorneys General of other states issued legal opinions finding that no such conflict would exist. With the final ruling of the Supreme Court of Ohio, which held that the DV Statute was not in-conflict, no State faces any contention between marriage Statutes and Domestic Violence Laws.

The right to privacy
Many legal scholars suggest that FMA, by defining the institution of marriage on a federal level for the first time, would force Supreme Court re-interpretation of hundreds of laws affecting existing heterosexual marriages. Legal critics of the FMA frequently call it a "stealth amendment." They point out that the second sentence of the proposed FMA would not be necessary unless social conservatives had a broader and much more radical agenda: to end any implied right to privacy decided on the basis of the U.S. Constitution's omission of the word "marriage," to end state constitution jurisdiction over marriage and marriage-like arrangements, and to allow new federal laws denying access to birth control (for example) to currently married heterosexual couples.

Separation of church and state
Some religious groups argue that having the government decide whether a same-sex marriage should be legally binding on the grounds of the ideology of other religious groups restricts their religious freedom. They argue that marriage is a religious term that should not be defined by the government. Where same-sex marriage is recognized in the United States, no church or other religious institution is forced to perform same-sex marriages, but the FMA would deny the opportunity for religions which approve of same-sex marriage to perform legally binding same-sex marriages.

Unnecessary and ineffective
Opponents of the FMA claim that life for those in a heterosexual marriage are not materially affected by a constitutional marriage definition or legalization of same-sex marriage. They state that the FMA is totally unnecessary because federal and state laws, combined with the present state of the relevant constitutional doctrines, already make court-ordered nationwide same-sex marriage unlikely for the foreseeable future. It is claimed therefore, that such an amendment is a solution in search of a problem. It is claimed that neither federal nor state courts are likely to order same-sex marriage under the traditional interpretation of the Constitution’s Full Faith and Credit Clause. Nor, for the foreseeable future, are courts likely to mandate same-sex marriage under substantive federal constitutional doctrines, such as the Fourteenth Amendment’s Due Process Clause or the Equal Protection Clause. They state that even if individual states recognize same-sex marriages, while other states refuse to recognize them, there is no reason to believe these discordant approaches will create insurmountable legal or public policy problems. There is no uniform national family law, just as there is no uniform national property law or criminal code. Throughout the nation’s history, states have adopted their own family law policies, including their own requirements for marriage. These divergent policies have not created intolerable levels of confusion or conflict among the states.

Arguments in favor of the Federal Marriage Amendment
''This section contains arguments specific to the Federal Marriage Amendment. For arguments for and against same-sex marriage in general, see Same-sex marriage''

Restriction of perceived judicial overreach
Proponents of the FMA argue that if it were not for judicial overreach, there would be no need for a FMA. They argue that the federalism proposed by the opponents of a constitutional amendment is a contrivance for permitting federal courts to foist same-sex marriage upon the whole nation, no matter what the people of the individual states desire. In essence they see the FMA largely as a defensive measure that would not be necessary if the judiciary were not acting beyond its perceived scope. Proponents support this claim with Citizens for Equal Protection v. Bruning, in which a district court struck down Nebraska's marriage amendment, even though it had been passed by a margin of seventy percent (although the amendment was later reinstated.) Opponents of the FMA argue that this argument is an invalid scare tactic because no Federal court has ever ordered a state to permit same-sex marriage.

Uniform application of Full Faith and Credit
Under the Full Faith and Credit Clause, with certain exceptions, a state is obligated to honor the judgments and declarations of other states. While some assert that a "license" could be construed as a "judgment", the majority of legal scholars disagree. However, it is pointed out that a judgment for divorce is required to be honored because judgments are required to be enforced by out-of-state jurisdictions, regardless of whether those judgments are against the public policy of the out state forum (see Williams v. North Carolina, 317 U.S. 287 (1942) (the case also stated that there is no "authority which lends support to the view that the full faith and credit clause compels the courts of one state to subordinate the local policy of that state, as respects its domiciliaries, to the statutes of any other state"). Because of the intricacies of family law and the mobility of married couples, the recognition of marriages in other states varies. For example, a couple who leaves California for Massachusetts to obtain a valid same-sex marriage may not be granted an equitable divorce in California should they file for divorce there. However, if they were granted a valid divorce in Massachusetts, the state of California would be required to uphold the judgment of the Massachusetts court. Using this scenario, not only would same-sex married couples be treated differently depending on the state, they could also be treated differently in the same state depending upon which state their divorce is obtained. The need for clarification on state uniformity in this issue requires a constitutional amendment at the federal level, particularly considering there will be a floodgate of marriages in out-of-state jurisdictions for purposes of obtaining a same-sex marriage license.

Protection of conjugal marriage
FMA proponents argue that traditional marriage in the United States has been given special legal protection. This protection has historically been granted only to the unique institution of conjugal marriage. Proponents of the FMA argue that same-sex marriage advocates want to disregard federalism and enact same-sex marriage nationwide via judicial fiat, then the Federal Marriage Amendment is necessary to protect the institution of conjugal marriage by nationally preventing other forms of marriage.