The White House and the Musgrave Amendment

Throwing the weight and power of the White House behind any constitutional amendment that requires the states to discriminate against one group of citizens would be a shameful act. Unfortunately, the White House has reportedly made a decision to back the “Federal Marriage Amendment” (FMA), a constitutional amendment introduced by Rep. Marilyn Musgrave (R-CO) on May 21, 2003. It reads:

    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, 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.

While the FMA’s backers claim that it would allow state legislatures to make their own decisions about domestic partnerships and civil unions, the language of the FMA suggests otherwise. A number of legal scholars believe that any law extending basic legal protections to same-sex couples and their families, such as New Jersey’s recently enacted domestic partnership law, could be challenged as violating the second sentence of the amendment. It appears that anti-gay groups are using the smokescreen of “protecting” marriage to enshrine anti-gay discrimination in the Constitution at a time when Americans are increasingly supportive of legal equality. Polls show that most Americans are opposed to a constitutional amendment.

The Family Research Council, a virulently anti-gay organization, recently announced that it was endorsing the Musgrave language after close consultation with the White House. The Family Research Council’s ultimate goal regarding same-sex relationships is clear. It has been asking candidates to sign a pledge that includes this phrase: The uniting of persons of the same or opposite sex in a civil union, domestic partnership or other similar relationship shall not be valid or recognized with any legal benefits or privileges in the United States.

While some Religious Right leaders have been agitating for an amendment with even more explicit and sweeping anti-gay language than the FMA (one is currently being championed by Concerned Women for America), the FRC announcement appeared to signal an agreement between the White House and at least some of its allies to back the Musgrave FMA. This apparent decision has spawned efforts to portray President Bush as endorsing a moderate approach to amending the Constitution. But the act of amending the Constitution is not a moderate act; disfiguring the Constitution with a requirement to discriminate is nothing close to moderate.

Even a number of conservatives and ultraconservatives say that the FMA is a bad idea. House Judiciary Committee Chairman James Sensenbrenner has said he believes a constitutional amendment is not necessary. Vice President Dick Cheney has said that states should be able to set their own marriage policies – so has conservative columnist George Will. Other conservative commentators like David Brooks and Andrew Sullivan have been making the case that conservatives should embrace same-sex marriage because promoting the values of commitment and stability is good for society and is good for marriage itself. Having more people willing to take on the obligation to support and care for each other only strengthens marriage.

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