I’ve got to agree with Freedom on this. You never know just how the Supreme Court will interpret an Amendment, but I sure don’t want 'em just ignoring one completely.
Well, is there any interpretation that doesn’t either render it meaningless (e.g. k2dave’s example) or completely destroy jurisprudence as we know it?
Well, these people would probably be quite glad to declare that transsexuals and other such perverts should not be allowed to exist, let alone marry, so that concern is irrelevant.
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U.S. House Approves Flag Protection Amendment
Thank God there are so many obstacles to passing an Amendment. I’m wondering if the growth and increased diversity of our country has raised the bar even higher in the last couple of decades.
Hmmmm…I have to take the seemingly unpopular stance that what is happening here is actually a good thing. The marriage laws in the states are beginning to diverge, especially with respect to gay and lesbian marriages. Whether marriages performed in one state must be recognized by states with differerent laws is a serious issue. A constitutional ammendment would serve to resolve the question in a legitimate manner.
While the proposed ammendment would confer recognition upon marriages between one man and one woman, nothing precludes the proposal of another ammendment that requires each state to recognize the legitimacy of marriages performed in another state. In fact, having these competing proposals may be the best way of resolving the question.
Because this is an issue that involves states’ relationships with each other, the Constitution is the proper place to address it. The ammendment process provides a very good forum for issues like this. It ensures the issue will be widely debated and not hastily decided.
If the Constitution were ammended to address this issue, it would indicate that the nation reached a resolution on the relationship between the states. To my mind, this is much more preferable than having the decision being made by the Supreme Court. It is an issue that is clearly not addressed in the Constitution, but the Court would be forced to legitimize one side or the other. The official ammendment process is better than having nine justices making the final decision.
Side note: Notice that the language of the proposed ammendment does not prohibit states from recognizing other forms of marriage. It just says that the recognition of those marriages “required” (presumably by other states and the federal government).
The Constitution already contains language which resolves the question in a legitimate manner: The Full Faith and Credit Clause requires every state to recognize a marriage performed in another state. The reason for this amendment is not clarification; it is change.
Are you reading the same amendment that I am? The first sentence would clearly preclude any state from conferring the marital status of “married” on any couple not consisting of male and female, one each. Sentence two neatly dismantles civil unions (secured in Vermont under the state constitution) and domestic partnerships, and prevents the use of the Equal Protection and Full Faith and Credit clauses to claim recognition of any rights defined as “marital” (by use of such words as “spouse,” “husband” or “wife” in the statutes).
The evil men and women proposing this amendment claim it’s to keep children from growing up without fathers? Then they should propose an amendment to ban divorce and require men marry the women they knock up. No, this has nothing to do with “strengthening families” or whatever other rot they claim. Not a single mixed-sex marriage would either flourish or fail under the auspices of this amendment. Why is it that people who claim they are doing God’s work always seem to be so dishonest in doing it?
That’s not how I read it. As I read it, all the amendment does is prohibits federal law (including federal constitutional law) from requiring any state to recognize as a marriage any marriage-like institution from another state other than one between one man and one woman. States may choose to require themselves to do so without conflicting with this amendment.
This amendment seeks to poke a hole in the Full Faith and Credit Clause, by allowing one state to disregard another state’s marriages when those marriages are not of the “proper” kind (where “proper” is defined by the drafters of the amendment).
This presumes that the Full Faith and Credit Clause requires states to accept marriages performed in other states as valid marriages under their own laws. Even prior to the same-sex marriage issue, states did not always do this. Some states refuse to recognize marriages that involve first cousins or minors that were performed in other states.
It is in the debate over gay and lesbian marriages where the Full Faith and Credit argument was raised. If the clause were to bind states to recognize marriages, it would also bind states to enforce the laws and abide the judicial precedents of other states. This is clearly not what was intended.
The problem is that you will not get people to agree on the application of the Full Faith and Credit Clause as it applies to marriages. This is why ammending the Constitution would be a positive step.
Disagree. The proposed amendment:
OK, the first sentence imposes a definition of marriage on all of the United States, regardless of any state law to the contrary (not that any currently exist). So a new law in any state that defines marriage in any way other than “man and wife” will be superceded. If a new Tennesee law were to say that two men or two women could get “married”, the law would have no effect - the amendment would trump it.
The second sentence is admittedly somewhat confusing by its use of the term “require”. But let’s look at it this way. Say a state court rules in a case that the state constitution “requires” that state to confer marital status or the “legal incidents thereof” (such as inheritance rights, divorce and alimony rights, etc.) on same-sex couples or groups, this amendment would nullify such a decision. Further any new state law concerning same-sex or group marriage or civil unions has the effect of “requiring” the county clerk, businesses, etc., to recognize the marriage or union. Again, the amendment would trump - those people, regardless of the state law, would not be required to treat the group/couple as married, and not grant them the rights of a “man and wife” married couple.
The Ryan, the amendment would neither destroy states rights nor current jurisprudence. The whole point of the Constitution is to delineate what both the federal government and the states may and may not do. I mean, does that fact that the Constitution forbids a state from declaring war on a foreign power “destroy” state’s rights?
As for interpretation issues, the only part a court could play with would be the “legal incidents” bit. That is actually a very interesting question. While there are many rights commonly associated with marriage, my recollection of my research on this issue from a few years ago is that, while marriage is a fundamental right protected by the constitution, the “legal incidents” thereof are creations of state law - there is no federal right to inheritance, divorce, tenancy by the entireties, etc. I would be very interested to see what would happen if a state (were the amendment passed), simply stripped marriage of all legal significance aside from the title, and instead made the “legal incidents” of marriage a matter of contract law or some such.
Anyhow, don’t be too complacent that this amendment won’t make it out of Congress. The best hope is procedural - that (in the current Congress), the Senate leadership won’t let it get to the floor. If it’s on the floor, persons of Congress would have a difficult time voting against it. And a whole mess of state legislatures would let the amendment sail through easily.
Sua
SuaSponte: Looking at the language again I see your point. This is far more aggressive and nasty than I first thought. It might even negate existing things like same-sex survivorship under NYC rent control.
The big question I have is how this amendment will reduce the “epidemic of fatherless families”.
Okay, that was an overstatement. But it certainly would make a huge portion of state laws open to federal challenge.
See, that’s what I mean about ignoring this amendment. I can’t think of any interpretation that doesn’t either simply necessitate a few changes of nomclamature (like yours), or else lead to absurd situations.
It’s as if there were a law that read “Homicide shall consist of a victim and a perpetrater. Any homicide not committed in self defense shall be illegal”. Such a law would be meaningless.
I’d have to review the case law but I’m fairly confident FF&C was raised in other marriage rights cases. And the purpose of the FF&C clause as I understand it was to ensure that legal actions taken in one state were acknowledged in other states. So that you didn’t have to marry someone in all thirteen original states, or divorce them in all 13 states, or worry about people from out of state taking your land under an edict from their home state and the like. It doesn’t require, and wouldn’t require were SSM legalized under its auspices, that one state enforce, say, the speed limit of another state or prosecute crimes according to another state’s statutes. Nor would it in any way require courts from one state to recognize precedent from another state any more than it does now. FF&C exists now and these things aren’t happening that you’re warning of. I don’t see how a ruling requiring one state to recognize another state’s marriages would suddenly wreak this dire consequence.
Someone said something about one state not recognizing marriages from out of state that violate the first state’s law (e.g. first cousin marriages). It’s my understanding that, absent an act of fraud on the part of the couple (i.e. leaving their home state to marry in another to expressly avoid their home state’s restrictions), every state currently recognizes marriages performed legally in another state. Non-common law states recognize out of state common law marriages and require the couple to go through a legal divorce to dissolve the marriage.
jaimest wrote:
> So folks like Gary Condit, Henry Hyde, Dan Burton, and
> Hillary Clinton, in their infinite wisdom; will help us
> define what constitutes a proper marriage?
To which I responded:
> Let’s be accurate here. None of those people are on the
> board of advisors of this group, and perhaps none of them
> would even be willing to support this bill. Certainly
> those four people that you name have wildly different
> politics. What was your point here - that you don’t like
> these people and you don’t want them deciding what a
> proper marriage is?
To which jaimest responded:
> I was being a bit smart-assed, but my point is this.
> The people I mentioned are all legislators. They would
> vote on any constitutional amendment that is proposed.
I don’t want the people you list deciding what a proper marriage is either, but I don’t see any reason to mention those people. I wouldn’t want a random group of Straight Dopers deciding what a proper marriage is any more than I want a random group of politicians doing it. From what I’ve seen of people discussing their personal lives on this board, I don’t see that Straight Dopers are any better at running their personal lives than most politicians are.
This is not the case. Here is a quote from the Senate hearings on DOMA from The Congressional Record:
Here is the link if you want the full text (the quote is from page 13):
http://www.cs.cmu.edu/afs/cs/user/scotts/ftp/wpaf2mc/senate-debate.pdf
Oy…
Add me to those who besides thinking the amendment is silly, on basic principle oppose turning the Constitution into a Civil Code.
With all its minor cricks and rattles to be expected from a pluricentenarian document, the U.S. Constitution with its Amendments is an eminently elegant and economic document: it sets down the basic blueprint on how the national government is to be organized, what rights all citizens of the nation are to have, and by what basic rules the sub-national components are going to play with each other and with the national government… and it stops there. Leaving the details of civil legislation, which may be contingent on the times and on available resources, to be worked at thru regular statute.
A cursory look at the US Constitution plus amendments gave me a count of a little over 50 substantive “Sections” or undivided Articles (i.e. that actually establish a right or procedure or institution or define powers of government).
Compare OTOH the constitution of Honduras with 375 Sections/Articles that go into such minutia as how Universities will be financed, who can be named a General in the Army, the tax status of schoolteachers, legitimacy of children, preferences in inmigration, what is a legal marriage, etc., etc. …
I certainly would not look forward to such a fate for the US Constitution.