I’ve just read a transcript of President Bush’s speech about the constitutional amendment that will ban gay marriages. Besides being a load of tripe, it raises the question for this Canuck about the issue of legality.
If there is a Constitutional ammendment, does that mean it becomes illegal throughout the country for gay people to get married, or can there be exceptions on a state, county or city level? Does it make gay marriage illegal or unconstitutional? Or are those the same thing? A long, detailed reply isn’t necessary. The reader’s digest version will do fine. Thanks in advance.
The first person to guess at what point I dropped Political Science in university becomes the Unchallenged Master of the Obvious…
The Readers Digest version is that only laws can be unconstitutional, not individual actions.
An amendment to the federal constitution supersedes all lower laws. The whole purpose of the amendment would be so that no states, counties, or cities could make same-sex marriage legal.
Any same-sex marriage conducted after that would not be recognized. It is itself would not be “illegal,” although anyone presiding over such a marriage could be liable for penalties, as the mayor of New Paltz, NY, was just cited for misdemeanors for the marriages he officiated at. It’s just that the “marriage” could not be legally recognized for any benefits that the laws provide for married couples and would have no legal status at all.
The Musgrave amendmet (FMA) would make same sex marriage illegal in every state. It makes any law allowing same sex marrige unconstitutional. Simple, clean, and undebatable.
A constitutional amendment means that should someone attempt to challenge the law (by having a same-sex marriage performed, say, or being married to a member of the same sex) all the way to the Supreme Court, the Court would have no choice or option but to uphold the law as stated in the Amendment.
In basic terms, a constitutional amendment somewhat circumvents the balance of powers, as it makes the Court unable to rule against it. The Supremes can only interpret the Constitution, but cannot change it.
To repeal would take another act of Congress. Think about the 18th Amendment - Banned alchohol consumption and sale throughout the United States. The 21st Amendment repealed that; net effect = back to starting point.
Thank you GomiBoy, that answered my next question: What would it take to have it reversed if the government suddenly decided that maybe it would be okay to treat gay people like gaspeveryone else?
In fact, several amendments were passed strictly in response to Supreme or lower court decisions. The 16th Amendment authorized an income tax, following a Supreme Court ruling that only apportioned or “head” taxes were constitutional. The 24th Amendment (banning poll taxes) was passed after the Federal government couldn’t find any other authority to do so. And the 19th and 26th Amendments (women’s suffrage and the right to vote at age 18) were passed in response to a patchwork of differing (but all legal) state definitions of eligibility.
And just to clarify, to repeal a Constitutional amendment, you have to have another Constitutional amendment, which requires ratification by both houses of Congress AND the states.
Good points both; I didn’t realize it took a vote of the states as well as Congress, and my memory of Constitutional history is a bit fuzzy (I even had to look up the numbers of the Amendments I wrote about.
I don’t know if I like the term “circumvents” here. How does it upset the balance of powers? It applies to all the branches. The executive and legislative branches are just as bound by it as the judicial branch. Amendments aren’t just ueberlaws; they are the Constitution.
2/3 vote in Congress (both houses) and 3/4 of the state legislatures to ratify. Additionally, Congress usually puts a timeframe (7 yrs seems to be the norm) for the states to ratify, or it dies. The Equal Rights Amendment died of old age that way.
Another route is to call a constituational convention, and then states send representatives to vote together, and it still takes 3/4 of them to pass it. This can be a quicker way of getting the job done.
A constitutional amendment can redefine the balance of powers.
As one example, Amendment 25 provides that if the Vice President and Cabinet decide to hold a palace coup, Congress gets to referee the coup. (Technically: The VP and Cabinet inform the Speaker of the House and Pres. pro tem. of the Senate that the Pres. is unfit for duty; Pres informs SotH and Ppt that he is fit for duty; VP and Cabinet say no he’s not; Congress meets to debate the issue, and rules for one side or the other. All nice, neat, legal, and nobody has to get shot.)
This amendment defined Congress’s authority to intervene in a specific dispute within the Executive branch.
Now if Congress had simply claimed this power for themselves, that would indeed have been circumventing the balance of powers. Since the amendment went through the defined process, the balance has been modified.
The SC might come into play in this scenario to interpret what counts as the Pres being “unable to discharge the powers and duties of his office.” As you said, the SC interprets law (including the Constitution), it cannot change it (beyond finding that one part of law takes precedence over, and renders inoperable, a conflicting part of law).
Just for the benefit of our non-US friends, it sometimes gets lost in this debate that the President and VP have absolutely no official role in the amendment process. They don’t get to vote. Even the VP, who has the power to break tied votes in the Senate, is powerless since a 51/50 vote is meaningless in light of the 2/3 majority needed to pass an amendment. And the President has no veto power in this instance.
The act of amending the constitution is **strictly ** confinded to the legislative branch.
