Editing Federal Marriage Amendment (section)

==Background and current law==

===Role of states===
In the United States, civil marriage is governed by [[State law (United States)|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. 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 the ''Windsor'' decision in 2013, nearly all courts that have addressed the issue have held that states with laws defining marriage as a one-man, one-woman union cannot refuse to recognize same-sex marriages that were legally performed elsewhere and must permit all people, regardless of gender or sexual orientation, the right to marry.<ref name="dodson"/>

Same-sex marriage is currently legal in [[Same-sex marriage in the United States#Tables|all US States]].  In 2003 and 2008 respectively, the [[Massachusetts Supreme Judicial Court|Massachusetts]] and [[Supreme Court of California|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. The Massachusetts decision could be reversed by an amendment to the state constitution; to date, no such amendment has successfully been passed in Massachusetts. On June 2, the [[California Proposition 8|''California Marriage Protection Act'']], commonly referred to as Prop 8 qualified for the 2008 General Election ballot.<ref>[http://www.sos.ca.gov/elections/elections_j.htm#2008General California 2008 General Election ballot propositions] {{webarchive|url=https://web.archive.org/web/20090617213215/http://www.sos.ca.gov/elections/elections_j.htm |date=June 17, 2009 }}</ref> Voted into law on November 4, 2008, it amended the California Constitution to provide that "Only marriage between a man and a woman is valid or recognized in California". Prop 8 was later found to be unconstitutional and same-sex marriage was allowed to resume.<ref>{{Cite web |url=http://ag.ca.gov/cms_pdfs/initiatives/i737_07-0068_Initiative.pdf |title=California Marriage Protection Act |access-date=June 19, 2008 |archive-url=https://web.archive.org/web/20110721032937/http://www.ag.ca.gov/cms_pdfs/initiatives/i737_07-0068_Initiative.pdf |archive-date=July 21, 2011 |url-status=dead }}</ref>  Thirty states passed state constitutional amendments defining marriage as being between one man and one woman. On June 26, 2015, all amendments banning same-sex marriage were invalidated by the Supreme Court's ruling on ''[[Obergefell v. Hodges]]''.

===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 in U.S. territories, 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), section 3 of which defined marriage as a legal union of one man and one woman for the purpose of interpreting federal law. Under DOMA section 3, the federal government did not recognize same-sex marriages, even if those unions were recognized by state law. For example, members of a same-sex couple legally married in Massachusetts could not file joint [[Income tax in the United States|federal income tax returns]] even if they filed joint [[State income tax|state income tax returns]]. DOMA section 3 was struck down by the U.S. Supreme Court in ''[[United States v. Windsor]]'' on June 26, 2013 and repealed by the [[Respect for Marriage Act]] on December 13, 2022.

===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 barred legislative and judicial remedies to protect homosexuals from discrimination solely on the basis of their sexual orientation in ''[[Romer v. Evans]]''.

In 1972, the [[Supreme Court of the United States|U.S. Supreme Court]] dismissed, "for want of a substantial question," an appeal by two men who unsuccessfully challenged Minnesota's marriage statutes in state court. Because the case, ''[[Baker v. Nelson]],'' came to the Court through mandatory appellate review (not ''[[certiorari]]''), the summary dismissal established ''Baker v. Nelson'' as a binding precedent.<ref>Project, ''Developments in the Law: The Constitution and the Family,'' 93 Harv. L. Rev. 1156, 1274 (1980) (discussing ''Baker's'' posture as precedent); ''see, e.g.'' Pamela R. Winnick, Comment, ''The Precedential Weight of a Dismissal by the Supreme Court for Want of a Substantial Federal Question: Some Implications of Hicks v. Miranda,'' 76 Colum. L. Rev. 508, 511 (1976); ''Baker v. Nelson,'' 409 U.S. 810 (1972).</ref>

In 2010, the [[United States District Court for the Northern District of California]] ruled<ref>{{Cite web |url=http://msnbcmedia.msn.com/i//MSNBC/Sections/NEWS/A_U.S.%20news/Life/gaymarriage.pdf |title=Archived copy |access-date=August 5, 2010 |archive-url=https://web.archive.org/web/20110614223900/http://msnbcmedia.msn.com/i//MSNBC/Sections/NEWS/A_U.S.%20news/Life/gaymarriage.pdf |archive-date=June 14, 2011 |url-status=dead }}</ref> that Proposition 8, passed two years earlier by a majority of voters, was unconstitutional. As in Judge Baitaillon's decision about the Nebraska law, Judge [[Vaughn Walker]] stated in his ruling that moral opposition to same-sex marriage is not sufficient reason to make a law valid. Judge Walker ruled the law violated the 14th Amendment's Equal Protection clause, as well as the Due Process Clause. The proponents of Proposition 8 appealed to the [[United States Court of Appeals for the Ninth Circuit]], which affirmed the lower court's decision on February 7, 2012.<ref>{{cite web|last=Hagan |first=Robyn |url=https://blogs.findlaw.com/ninth_circuit/2012/02/perry-v-brown-ninth-circuit-says-prop-8-is-unconstitutional.html |title=Perry v. Brown: Ninth Circuit Says Prop 8 is Unconstitutional - Civil Rights Law - U.S. Ninth Circuit |publisher=Blogs.findlaw.com |date=February 7, 2012 |access-date=October 14, 2013}}</ref> On June 26, 2013, the [[Supreme Court of the United States|U.S. Supreme Court]], vacated the Ninth Circuit's ruling for lack of jurisdiction. Two days later the Ninth Circuit dissolved its stay of the district court's ruling, allowing same-sex marriage to resume in California.<ref name="latimes.com">[http://www.latimes.com/local/lanow/la-me-ln-prop-8-gay-marriage-20130628,0,1889039.story Prop 8: Gay marriages can resume in California, court rules]</ref> In 2015 the Supreme Court held in ''[[Obergefell v. Hodges]]'' that the government could not refuse to recognize same-sex marriage.