Justifications, Obfuscations and Wave of State Anti-Marriage Constitutional Amendments Cloud Defeat of Federal Marriage Amendmen

July 15, 2004

'The message should have been that this year's election will not be won on our backs.'

Matt Foreman, National Gay and Lesbian Task Force Executive Director

Roberta Sklar, Director of Communications

WASHINGTON, DC, July 15, 2004 — Yesterday, as long expected, the "Federal Marriage Amendment" was killed in the U.S. Senate, failing to even garner the 60 votes needed to end debate, let alone the 67 votes it would need to pass in an up/down vote. Six Republicans joined all but three Democrats in defeating the motion for cloture 50 to 48. A majority of the entire Senate would have voted against cloture had either Sen. John Kerry or Sen. John Edwards been present for the vote. There is widespread agreement that the vote was a major embarrassment for President Bush, who made repeated calls for the Senate to pass the amendment, and a significant defeat for the religious right, which has poured millions into pro-amendment lobbying efforts.

Statement by Matt Foreman, Executive Director
National Gay and Lesbian Task Force:

"Yesterday's defeat of the 'Federal Marriage Amendment' in the U.S. Senate - even though long expected - is a welcome repudiation of the President's cynical attempt to bash the gay community to both appease and energize his far right base.

Our national community and its allies owes its thanks to the Democratic minority in the Senate for fulfilling its year-old pledge to kill the amendment, to the six Republican senators who broke party ranks, and to the many gay and straight organizations who have worked so hard on this, including the Human Rights Campaign, Log Cabin Republicans, LLEGO, the National Black Justice Coalition, People for the American Way, the American Civil Liberties Union, Planned Parenthood and so many, many more. We can and must savor this moment.

At the same time, there are many clouds over the vote. First, while every vote against the amendment is welcome, the vote was far from a ringing endorsement for equal rights for lesbian, gay, bisexual and transgender (LGBT) people. In fact, the statements made by so many senators to explain their votes were discouraging, frequently insulting, and denied many Americans the respect we are due. Some said the amendment was 'unnecessary' because the repulsive 'Defense of Marriage Act' already bans the recognition of same-sex marriage. Others said that marriage has always been a 'state rights issue' and should be left to the states to work out. Others said they objected to amending the U.S. Constitution to address any social issues. Still others objected because they saw the amendment as 'divisive,' or politically motivated, or an attempt to distract the nation and the Congress from other, more important matters. Over and over again we heard even our staunchest allies repeating ad nauseam the mantra, 'I believe that marriage is between one man and one woman' or the ever-popular, 'While I do not support gay marriage,' not a single Senator stood up and said he or she was voting against the amendment because marriage is a fundamental right that same-sex couples should enjoy under the Constitution. If the Senate actually reflected and articulated the views of the American public, at least one-third of them would have actually argued for marriage equality and the basic rights of all Americans.

Second, even though yesterday's vote was technically procedural, (i.e., whether to stop debate), six Republican Senators crossed party lines to vote on our side - even though party unity on procedural votes is expected. Sadly, the Democratic Party's nominees for President and Vice President skipped the vote - though, thankfully, they said they would be present if there was a vote on the amendment itself. Had they come for yesterday's vote, a majority of the Senate - a much more powerful block of 52 members -- would have voted against the amendment. This missed opportunity for bringing to bear the full weight of the Senate could have sent a strong message to the U.S. House and to the over one dozen states who will have State Constitutional amendments on the ballot this November. The message should have been that this year's election will not be won on our backs.

Third, it goes without saying that the fight in Congress is far from over. The right wing will be sure to haunt Senators for their vote-explaining statements not being anti-gay enough. And Members of Congress may bow to the pressure from the right instead of doing their jobs to represent all Americans. For example, the House of Representatives is taking up a bill called the "Marriage Protection Act of 2003," (H.R. 3313) which seeks to strip federal courts of jurisdiction to hear challenges to the Defense of Marriage Act.

In other words, if enacted, this so-called "court stripping" bill means only state courts could consider DOMA challenges, and state courts have no jurisdiction to consider the constitutionality of discrimination against same-sex couples in immigration, Social Security survivor benefits, or federal tax issues. The many Senators who justified their vote because the nation already has DOMA will have a hard time objecting to this legislation.

Finally, all of this leads to the most ugly storm cloud on the horizon - the state anti-marriage constitutional amendments that will be on state ballots this November. While the community's focus has been on the stillborn federal amendment, the right has seized upon the 'marriage is a state issue' dogma espoused by so many and has already succeeded in putting state constitutional anti-marriage amendments on the ballot in eleven states, with three or four more states likely to be added to the list. What this means is that at least one in four Americans who cast their ballot this year will be voting on our place in society - or more accurately, on measures that would ensure our second-class place for generations to come. This orchestrated attempt to write discrimination into the foundational charters of our state governments is unprecedented in American history and has gone largely unnoticed.

It's no secret that our state and local organizations - incredibly smart, brave, and dedicated - are at a huge disadvantage in terms of money, resources, and organizational infrastructure. They will now bear the brunt of the right's assault. We know from painful experiences over the last 30 years that fighting anti-LGBT initiatives frequently leaves state and local communities drained, demoralized, and fractured - and that is a clear objective behind the right's state amendment campaign.

Our enemies work night and day on all fronts-federal, state and local-to deny and deprecate our lives. The anti-gay industry has an agenda: to deny we exist by writing us out of foundational documents like Federal and State Constitutions.

The FMA is DOA, but getting it to the morgue gave the anti-gay right the time it needed to run roughshod over us in more than a dozen states.

We must turn our attention and energy to the states where our Constitutional rights are genuinely up for grabs at ballot boxes in 2004. As well, we must fight vigorously against the noxious "court stripping" bill, HR3313. This legislation is far more menacing than the FMA because it may actually pass -- and if passed in this Congressional session, will surely be signed by the most anti-gay President to ever occupy the White House."

As introduced, HR3313 states:
"No court created by Act of Congress shall have any jurisdiction, and the Supreme Court shall have no appellate jurisdiction, to hear or determine any question pertaining to the interpretation of section 1783c [DOMA] of this title or of this section. Neither the Supreme Court nor any court created by Act of Congress shall have any appellate jurisdiction to hear or determine any question pertaining to the interpretation of section 7 of title 1 DOMA."


The mission of the National Gay and Lesbian Task Force is to build the political power of the lesbian, gay, bisexual and transgender (LGBT) community from the ground up. We do this by training activists, organizing broad-based campaigns to defeat anti-LGBT referenda and advance pro-LGBT legislation, and by building the organizational capacity of our movement. Our Policy Institute, the movement’s premier think tank, provides research and policy analysis to support the struggle for complete equality and to counter right-wing lies. As part of a broader social justice movement, we work to create a nation that respects the diversity of human expression and identity and creates opportunity for all. Headquartered in Washington, D.C., we also have offices in New York City, Los Angeles, Miami, Minneapolis and Cambridge.