Proponents of the Federal Marriage Amendment (FMA) are already conceding that they may not have the 60 U.S. Senators they need to invoke cloture during the week of July 12 when the vote is scheduled to be taken.  A vote on cloture is a procedural vote, which ends further debate on an issue, but for all practical purposes, it is very clear that the debate will not end whether 60 votes are secured or not.

The FMA is an effort to control radical elements in the judiciary that are moving well outside constitutional boundaries and definitions in a number of issues, including the definition of marriage.  Traditionally, marriage regulation has been delegated to the states, but with the recent Massachusetts Supreme Judiciary ordering that state’s Assembly to legislate gay marriage, calls for a federal amendment have increased. 

The current verbiage of the amendment is as follows: “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.”  This language still allows states the latitude they need to regulate marriage, but gives them the protection from overbearing or activist federal judges.

If cloture in the Senate were to be attained in mid-July, the next step for the FMA would be for the Senate to vote on its passage. That would require a two-thirds majority, or 67 votes.  The House of Representatives would then have to follow suit with a two-thirds majority, or 291 of its 435 members.  After the amendment has passed both chambers of Congress, it would then be sent to all 50 states, where at least three-quarters, or 38 states, would have to ratify it.  This process has only been replicated 17 times since the first 10 amendments — the Bill of Rights — were adopted. 

In Kentucky, both U.S. Senators, Republicans Mitch McConnell and Jim Bunning, have signed on to the FMA as co-sponsors.   "Due to the actions of several activist judges, I believe that a constitutional amendment is necessary to protect the proposition that marriage is a union of a man and a woman," said McConnell. 

Kentucky citizens should not be confused about their own separate state amendment to the state constitution that they will have the opportunity to ratify on the ballot on Nov. 2.  Senate Bill 245, a proposed constitutional amendment to the state constitution, was passed by the Kentucky General Assembly in the 2004 session in order to protect marriage from any kind of re-definition in the four levels of state court – District, Circuit, Court of Appeals, and Kentucky Supreme Court. 

Though some have argued that the Kentucky statute – the 1998 Defense of Marriage Act (DOMA) — is sufficient to protect marriage in Kentucky, others point out that State Senator Ernesto Scorsone was able to overturn the state’s sodomy statute through a series of court rulings from 1986 to 1992, culminating with a narrow 4-3 Kentucky Supreme Court decision.  The DOMA statute is just as vulnerable.

Writing the definition of marriage into the state constitution would preempt any Kentucky state judge from re-defining marriage.  With the passage of the FMA, federal judges would be limited as well.