The Federal Marriage Amendment, which seeks to enshrine marriage as a heterosexual institution, is back—and this time, it may actually stand a chance.
On Tuesday—Valentine’s Day—the Arkansas senate will hold a hearing on a petition that asks Congress to amend the U.S. Constitution and define marriage as between one man and one woman.
The Senate Joint Resolution was proposed on Feb. 2 by Republican Sen. Jason Rapert, an evangelical Christian who also serves as president of Holy Ghost Ministries, which states on its website that it teaches “Judeo-Christian leadership principles to legislators and government leaders in the United States and around the world.”
Rapert has also requested a constitutional amendment to "protect human life from conception." He defended both proposals in a Facebook Live video last week.
Rapert’s petition to Congress requests that “Nothing in this Constitution or in the constitution or laws of any state may define or be construed to define marriage except as the union of one man and one woman.”
In a Feb. 2 interview with Arkansas’s KATV, Rapert said he was proposing the amendment now, because he believes it has a chance with the new GOP-controlled Congress and Trump administration. He said a “silent majority” had spoken during the election.
“The federal courts, if they cannot stand up for the will of the people in this country, then we have Article V of the United States Constitution—the opportunity for 34 states in this nation to say we want an amendment that says marriage is between one man and one woman,” Rapert told KATV.
It would take 34 states voting in favor of the amendment to put it on the table and 38 states to add it to the Constitution.
Republicans have total control of 25 state governments, with a “trifecta” in each: Republican governors and Republican-majority senate and congressional legislatures. The GOP has at least partial control in 20 more states, and only six U.S. states are currently dominated by Democrats.
That means getting Congress to amend the constitution to ban same-sex marriage is hardly a right-wing fantasy, but a seemingly attainable goal.
Even so, Lambda Legal CEO Rachel Tiven told NBC News that Rapert’s constitutional amendment isn’t going anywhere.
“After Brown v. Board of Education, Southern states fought integration for years. Today those states are embarrassed about their past,” Tiven said. “Americans overwhelmingly support marriage equality. Anti-equality states can waste their time, but this is a non-starter.”
A request for comment sent to Rapert did not receive an immediate response.
Joseph Grabowski of the National Organization for Marriage, which fights against same-sex marriage, told NBC News that while a constitutional amendment would be an uphill battle, they expect the Supreme Court’s Obergefell v. Hodges ruling to be challenged once a conservative judge is seated.
“We have always supported a federal amendment to define marriage as the union of a man and a woman, but we recognize that passing any amendment to the Constitution is a very great undertaking,” Grabowski said. “We certainly don't think we are any further away from that possibility with the new Congress and present Administration, but we know that even under these circumstances, the matter will be a very hotly debated one and a challenge.”
The first Federal Marriage Amendment was proposed in 2002 but died in the Judiciary Committee. Variations on the effort—usually titled either Federal Marriage Amendment or Marriage Protection Amendment—have been attempted 11 times prior to the Arkansas petition.
The hearing is set to take place Tuesday morning during the meeting of the Arkansas Senate Committee on State Agencies and Governmental Affairs.
Even if the amendment fails, groups like the National Organization for Marriage hope to see other legislation coming down the pipe that will strengthen the argument that marriage is a heterosexual-only institution.
“We are also hopeful that laws like the First Amendment Defense Act, which protects from onerous lawsuits and discrimination those who believe in marriage as the union of a man and a woman, will be passed by the Congress and signed into law by President Trump,” Grabowski said.
Trump pledged to sign the First Amendment Defense Act throughout his campaign. In December, Lambda Legal’s Law and Policy Director Jennifer Pizer told NBC News that the bill would have “devastating” consequences for the LGBTQ community.