Last updated on: 6/2/2008 | Author:

Should the US Constitution Be Amended to Prohibit Same-Sex Marriage?

General Reference (not clearly pro or con)

Each year between 2003-2005, Senator Wayne Allard (R-CO) introduced a bill proposing an amendment to the US Constitution prohibiting same-sex marriage:

“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.

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.”


PRO (yes)


First Things, monthly journal, in an Oct. 2003 article titled “The Marriage Amendment,” made the following comments on the Senate bill S.J. RES.26:

“The proposed marriage amendment has been carefully crafted by leading constitutional scholars. The first sentence means that no legislature or court may confer the name of marriage on same-sex unions or recognize a same-sex marriage contracted in another country, such as Canada or the Netherlands. The second sentence is aimed more specifically at activist courts, both state and federal, preventing them from imposing same-sex marriage or its equivalent. The question of adopting arrangements other than marriage, such as civil unions, is left to the determination of the people through the democratic process in the several states…

There are a few gays who express admiration for traditional marriage and say they simply want to be included in its benefits. They claim they are now excluded. And they are right. They are not excluded by others; they are excluded by their identity as gays. To be homosexual is a condition; to be gay is a decision.”

Oct. 2003


George W. Bush, MA, President of the United States, remarked on Feb. 2, 2004, as transcribed in the White House press release “President Calls for Constitutional Amendment Protecting Marriage,” that:

“If we are to prevent the meaning of marriage from being changed forever, our nation must enact a constitutional amendment to protect marriage in America.

An amendment to the Constitution is never to be undertaken lightly… The preservation of marriage rises to [the] level of national importance. The union of a man and woman is the most enduring human institution, honoring — honored and encouraged in all cultures and by every religious faith. Ages of experience have taught humanity that the commitment of a husband and wife to love and to serve one another promotes the welfare of children and the stability of society.

Government, by recognizing and protecting marriage, serves the interests of all. Today I call upon the Congress to promptly pass, and to send to the states for ratification, an amendment to our Constitution defining and protecting marriage as a union of man and woman as husband and wife.”

Feb. 2, 2004


Mathew D. Staver, JD, Founder and Chairman of Liberty Counsel, wrote in his 2004 book Same-Sex Marriage: Putting Every Household at Risk:

“I too believe in states’ rights, but I strongly support amending our Constitution to protect traditional marriage. Marriage between one man and one woman is and always has been a federal matter, and the very act of amending the Constitution is an exercise in states’ rights…

The only way for the people in America to have a voice in marriage is to exercise their right under the Constitution to enshrine marriage once and for all between one man and one woman… It is only by the passage of a federal marriage amendment that the states may protect the will of the people. Marriage is clearly too important to be left to the whim of the courts. It has been and must continue to be national, and it must always be between one man and one woman…

Marriage is not merely a personal, private act. Children are part of marriage, and as such, the greater society is affected. It is neither wise nor desirable to deregulate marriage because, in so doing, our society would indeed suffer. No, marriage is a public good, and it is precisely one of the areas in which the government should and must continue to regulate in order to protect the public good.”



Edwin Meese, III, JD, Former Attorney General, wrote in a July 12, 2004 article for Heritage Foundation’s Web Memo, titled “Marriage Amendment Protects Federalism”:

“Society isn’t harmed when high-tax states live side by side with low-tax states. The market adjusts to the inconsistency. Not so with marriage. A highly integrated society such as ours—with questions of property ownership, tax and economic liability, inheritance, and child custody crossing state lines—requires a uniform definition of marriage…

If marriage is a fundamental social institution, then it’s fundamental for all of society. As such, it is not only reasonable but obligatory that it be preferred and defended in the law and, if necessary, protected in the U.S. Constitution.

A constitutional amendment that defines marriage would protect the states’ capacity to regulate marriage by sustaining it as an institution. In order to guard the states’ liberty to determine marriage policy in accord with the principles of federalism, society as a whole must prevent the institution itself from being redefined out of existence or abolished altogether.”

July 12, 2004

CON (no)


The American Civil Liberties Union (ACLU), in its Feb. 25, 2004 “Frequently Asked Questions About the Federal Marriage Amendment and Gay Marriage” posted on its website, provided the following answers and comments on the Senate bill S.J. RES.26:

“Rather than allow states to decide upon their own definitions of marriage or similar social compacts, the Federal Marriage Amendment would impose a single, discriminatory definition of marriage that all states would be required to follow – regardless of existing state laws…

Marriage is about commitment, love, sharing, and compromise. It is a private, personal choice that should not be denied to couples just because they are the same sex…

We are not asking people to change their religious beliefs… Civil marriage and religious marriage are different. At issue here is civil marriage – a legal institution regulated by the government that grants over 1,000 legal rights and obligations. Every year, at least 40% of heterosexual couples in the United States get married without a church, synagogue, mosque or religious ceremony. The First Amendment protects the right of people of faith to organize themselves according to their own beliefs and traditions, and no law recognizing marriage of lesbian and gay couples will limit the freedom of religions to define marriage as each sees fit.”

Feb. 25, 2004


The NAACP Washington Bureau’s Director Hilary Shelton presented a Mar. 3, 2004 “Statement on the NAACP’s Opposition to the Federal Marriage Amendment and Other Discriminatory Proposed Constitutional Amendments,” before the Senate Subcommittee on the Constitution of the Senate Committee on the Judiciary:

“The National Association for the Advancement of Colored People (NAACP)… recognizes that the issue of marriage rights for same-sex couples is a difficult and sensitive one… The NAACP has not taken a position on this question. But the NAACP is extremely opposed to any proposal that would alter our nation’s most important document for the express purpose of excluding any groups or individuals from its guarantees of equal protection…

The Federal Marriage Amendment would, for the first time, use an amendment to the Constitution as a tool of exclusion… The argument by many supporters of the amendment is that it would prohibit only court-ordered marriages and civil unions. This interpretation is incorrect. In fact, the amendment could forever eliminate a vast array of rights and protections already provided by states, counties, cities, and towns across the country…

The Federal Marriage Amendment, and other discriminatory proposed constitutional amendments stand in stark contrast to the amendments that have been adopted in the spirit of freedom and liberty. As James Madison explained, constitutional amendments are reserved ‘for certain great and extraordinary occasions.’ Amending the federal Constitution to strip civil rights away from any group of persons is not such an occasion.”

Mar. 3, 2004


Bob Barr, JD, Former US Congressman (R-GA), wrote in his July 16, 2004 article for, titled “The Federal Marriage Amendment”:

“The Federal Marriage Amendment (FMA) [S.J.RES.40] failed in the Senate. That’s a good thing…

[T]he Defense of Marriage Act (DOMA), which I authored… defines marriage for the purposes of federal law as the union of a man and woman… The FMA, in contrast, went much further – and in a wrong-headed direction. It would have forced every state in the Union to define ‘marriage’ as a heterosexual union. And it would have forbidden state and federal courts, lawmakers and officials from ever changing or amending that definition…

But the FMA, in seeking to impose a federal definition of marriage on the states is fundamentally at odds with the true conservative principle of limited, federalist government…

It’s true that we might have some minor league amendments in our Constitution – but none of these amendments erode basic rights. And the FMA, had it been passed, would have done just that.

The FMA was a big deal. If it had passed, it would have meant that we had have turned several razor-edge corners. Most disturbingly, for the first time, we would have ‘used’ the Constitution to restrict rights.”

July 16, 2004


Kathleen Moltz, MD, Assistant Professor at Wayne State University, testified on Apr. 13, 2005 before the US Senate Judiciary Committee Subcommittee on the Constitution, Civil Rights, and Property Rights:

“I am here as the mother of two beautiful children whose welfare I am trying desperately to protect, as the partner of the wonderful woman with whom I share my life, and as a pediatrician who has taken an oath ‘to first, do no harm.’…

I have heard that marriage must be ‘protected’ from families like mine for the good of children. As a pediatrician, I know that this is completely unsupported by any scientific fact…

I don’t know what harm your words and actions as leaders advocating for a constitutional amendment might cause. I fear that families like mine, with young children, will lose health benefits; will be denied common decencies like hospital visitation when tragedy strikes; will lack the ability to provide support for one another in old-age. I fear that my loving, innocent children will face hatred and insults implicitly sanctioned by a law that brands their family as unequal.

I… know [that] such an amendment will not… help couples who are struggling to stay married. It will not assist any impoverished families struggling to make ends meet or to obtain healthcare for sick children. It will not keep children with their parents when their parents see divorce as their only option. It will not help any single American citizen to live life with more decency, compassion or morality.”

Apr. 13, 2005