# Senate debates, Bush backs, anti-SSM amendment. Implications? **URL:** \ **Category:** Great Debates\ **Created:** [June 6, 2006, 5:28pm UTC](https://boards.straightdope.com/t/senate-debates-bush-backs-anti-ssm-amendment-implications/359639 "2006-06-06T17:28:43Z")\ **Posts on this page:** 20\ **Page:** 2
**Author:** ![John\_Mace](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/john_mace/32/185_2.png) [@John\_Mace](https://boards.straightdope.com/u/John_Mace)\ **Post date:** [June 6, 2006, 7:09pm UTC](https://boards.straightdope.com/t/senate-debates-bush-backs-anti-ssm-amendment-implications/359639/21 "2006-06-06T19:09:28Z")
I think this little 2-3 day debate and subsequent vote in Congress will be so long forgotten come November, that it won’t make one hoot of a difference in the midterm elections. Maybe if the Republicans had scheduled this for the end of Oct, they might’ve gotten some mileage out of it. Still, there are plenty of solidly Republican reasons for voting against this amendment, and I don’t think any Democrats are going to be hurt for doing so. This amendment doesn’t have a snowball’s chance in hell of passing Congress, and it wouldn’t survive in the states, either. All bets are off, though, if we get a SCOTUS decision striking down DOMA or echoing the MA court’s decision some time in the future (which I highly doubt will happen either). ---
**Author:** ![Miller](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/miller/32/481_2.png) [@Miller](https://boards.straightdope.com/u/Miller)\ **Post date:** [June 6, 2006, 7:56pm UTC](https://boards.straightdope.com/t/senate-debates-bush-backs-anti-ssm-amendment-implications/359639/22 "2006-06-06T19:56:29Z")
> [@Bricker](#): > > Marriage simply should not be regulated by the federal government, in either direction. Do you feel the same way as regards federal requirments that states recognize mixed-race marriages? ---
**Author:** ![wring](https://avatars.discourse-cdn.com/v4/letter/w/838e76/32.png) [@wring](https://boards.straightdope.com/u/wring)\ **Post date:** [June 6, 2006, 8:12pm UTC](https://boards.straightdope.com/t/senate-debates-bush-backs-anti-ssm-amendment-implications/359639/23 "2006-06-06T20:12:53Z")
> [@Miller](#): > > Do you feel the same way as regards federal requirments that states recognize mixed-race marriages? or that one state recognize the marriage/divorce in another? ---
**Author:** ![BrainGlutton](https://avatars.discourse-cdn.com/v4/letter/b/82dd89/32.png) [@BrainGlutton](https://boards.straightdope.com/u/BrainGlutton)\ **Post date:** [June 6, 2006, 8:26pm UTC](https://boards.straightdope.com/t/senate-debates-bush-backs-anti-ssm-amendment-implications/359639/24 "2006-06-06T20:26:56Z")
> [@Loopydude](#): > > Is there really a question here? From what I’ve gathered after pondering this aloud here myself, a suit would be DOA on Constitutional grounds, as, given well-established precedents narrowing the scope of certain clauses, there is absolutely nothing compelling any state or the Fed. Govt. to recognize same-sex marriages performed in MA. Not the Commerce Clause, not the Comity Clause, nothing. It’s simply a non-issue for states banning gay marriage, and it’s a non-issue for the IRS, etc. 😕 How you figure that? Suppose a same-sex couple from MA – legally married in MA – filed a joint tax return. If the IRS refuses to recognize them as a married couple they could sure as hell sue, based on the “full faith and credit” clause, to challenge the constitutionality of the relevant IRS regulation and/or the DOMA. ---
**Author:** ![Bricker](https://avatars.discourse-cdn.com/v4/letter/b/977dab/32.png) [@Bricker](https://boards.straightdope.com/u/Bricker)\ **Post date:** [June 6, 2006, 8:30pm UTC](https://boards.straightdope.com/t/senate-debates-bush-backs-anti-ssm-amendment-implications/359639/25 "2006-06-06T20:30:19Z")
> [@Miller](#): > > Do you feel the same way as regards federal requirments that states recognize mixed-race marriages? The federal involvement there is limited to ensuring that the states’ implementation of marriage, like any issue, survives the strict scrutiny test if it creates a racial classification. So… no, I don’t feel the same way. > [@wring](#): > > or that one state recognize the marriage/divorce in another? There has long been a public policy exception to the Full Faith and Credit clause, and I think that is sufficient here. A state is not required to recognize acts of another state that are contrary to its own public policy. I don’t see a need for an additional constitutional amendment to solidify that in the realm of marriage, nor do I object to the existence of the public policy exception in the first place. ---
**Author:** ![Miller](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/miller/32/481_2.png) [@Miller](https://boards.straightdope.com/u/Miller)\ **Post date:** [June 6, 2006, 8:46pm UTC](https://boards.straightdope.com/t/senate-debates-bush-backs-anti-ssm-amendment-implications/359639/26 "2006-06-06T20:46:44Z")
> [@Bricker](#): > > The federal involvement there is limited to ensuring that the states’ implementation of marriage, like any issue, survives the strict scrutiny test if it creates a racial classification. So… no, I don’t feel the same way. Would you then object to ammending the constitution so that sexual orientation received the same level of scrutiny as race? ---
**Author:** ![Loopydude](https://avatars.discourse-cdn.com/v4/letter/l/e56c9b/32.png) [@Loopydude](https://boards.straightdope.com/u/Loopydude)\ **Post date:** [June 6, 2006, 8:49pm UTC](https://boards.straightdope.com/t/senate-debates-bush-backs-anti-ssm-amendment-implications/359639/27 "2006-06-06T20:49:18Z")
In response to **BG** : I’m really not sure how or why the FF&C is so relevant as an IRS matter, but as far as states are concerned, citing [this](http://writ.news.findlaw.com/grossman/20050301.html) article just as a f’rinstance… > [@](#): > > In talking about the Defense of Marriage Act (DOMA) in 1996, members of Congress suggested - to the contrary – that the U.S. Constitution’s Full Faith and Credit Clause requires the states to recognizes marriages from another state. > > But no Supreme Court case has ever so held. And the law of the states on marriage recognition issues comes from common law principles of comity - that is, the idea that states should respect each others’ law - and not the Full Faith and Credit Clause. > … > These common law principles would allow the overwhelming majority of states to disregard Massachusetts same-sex marriages if they so chose. Under these principles, a state can choose not to recognize a marriage because, among other reasons, it is contrary to the state’s “positive law.” Currently, four-fifths of the states have “positive law” - that is, a statute or constitutional provision - that is expressly anti-same-sex marriage. As long as these laws stand, these states may invoke common law to justify refusing to recognize out-of-state same-sex marriages. Indeed, it would appear from the analysis above, consistent with my own impressions, the language of the DOMA limiting marriage to the “legal union between one man and one woman as husband and wife” is enough for the IRS, and the fact that some states view things otherwise is interesting, but not relevant. The Federal Govt. is not a State. ---
**Author:** ![Bricker](https://avatars.discourse-cdn.com/v4/letter/b/977dab/32.png) [@Bricker](https://boards.straightdope.com/u/Bricker)\ **Post date:** [June 6, 2006, 8:50pm UTC](https://boards.straightdope.com/t/senate-debates-bush-backs-anti-ssm-amendment-implications/359639/28 "2006-06-06T20:50:47Z")
> [@Miller](#): > > Would you then object to ammending the constitution so that sexual orientation received the same level of scrutiny as race? Nope, not at all. Given the dramatic level of difference in the country (San Francisco compared to, say, Opelika, Alabama) I think it woiuld benefit us to protect against sexual orientation discrimination in the same way we protect againsr racial discrimination. ---
**Author:** ![bup](https://avatars.discourse-cdn.com/v4/letter/b/6bbea6/32.png) [@bup](https://boards.straightdope.com/u/bup)\ **Post date:** [June 6, 2006, 8:56pm UTC](https://boards.straightdope.com/t/senate-debates-bush-backs-anti-ssm-amendment-implications/359639/29 "2006-06-06T20:56:48Z")
> [@Bricker](#): > > Nope, not at all. Given the dramatic level of difference in the country (San Francisco compared to, say, Opelika, Alabama) I think it woiuld benefit us to protect against sexual orientation discrimination in the same way we protect againsr racial discrimination. Doesn’t “equal protection under the law” already imply that a legal classification with legal benefits available to heterosexual couples but not gay couples is unconstitutional? IOW, without a constitutional amendment “in defense of marriage,” how could a state have any law which passes constitutional muster? ---
**Author:** ![zamboniracer](https://avatars.discourse-cdn.com/v4/letter/z/e9a140/32.png) [@zamboniracer](https://boards.straightdope.com/u/zamboniracer)\ **Post date:** [June 6, 2006, 8:57pm UTC](https://boards.straightdope.com/t/senate-debates-bush-backs-anti-ssm-amendment-implications/359639/30 "2006-06-06T20:57:03Z")
Given the Constitution’s Full Faith & Credit provision then isn’t a constaitutional amendment absolutely banning SSM necessary given that through the FFC provision a liberal state (or in the case of Massachusetts, a liberal state supreme court) can inflict its will upon a conservative state where the great majority opposes SSM? It seems specious to me to say that each state should be allowed to go its own way, when Full Faith and Credit means that states can be stuck with the lowest common demoninator of what their sister states authorize. ---
**Author:** ![Miller](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/miller/32/481_2.png) [@Miller](https://boards.straightdope.com/u/Miller)\ **Post date:** [June 6, 2006, 9:00pm UTC](https://boards.straightdope.com/t/senate-debates-bush-backs-anti-ssm-amendment-implications/359639/31 "2006-06-06T21:00:23Z")
> [@Bricker](#): > > Nope, not at all. Given the dramatic level of difference in the country (San Francisco compared to, say, Opelika, Alabama) I think it woiuld benefit us to protect against sexual orientation discrimination in the same way we protect againsr racial discrimination. Which, of course, would have to include marriage rights, just as they were included under the 14th ammendment for inter-racial couples, right? ---
**Author:** ![BrainGlutton](https://avatars.discourse-cdn.com/v4/letter/b/82dd89/32.png) [@BrainGlutton](https://boards.straightdope.com/u/BrainGlutton)\ **Post date:** [June 6, 2006, 9:04pm UTC](https://boards.straightdope.com/t/senate-debates-bush-backs-anti-ssm-amendment-implications/359639/32 "2006-06-06T21:04:27Z")
> [@Bricker](#): > > There has long been a public policy exception to the Full Faith and Credit clause. . . Cite? ---
**Author:** ![BrainGlutton](https://avatars.discourse-cdn.com/v4/letter/b/82dd89/32.png) [@BrainGlutton](https://boards.straightdope.com/u/BrainGlutton)\ **Post date:** [June 6, 2006, 9:11pm UTC](https://boards.straightdope.com/t/senate-debates-bush-backs-anti-ssm-amendment-implications/359639/33 "2006-06-06T21:11:19Z")
> [@Bricker](#): > > There has long been a public policy exception to the Full Faith and Credit clause. . . Cite? ---
**Author:** ![Bricker](https://avatars.discourse-cdn.com/v4/letter/b/977dab/32.png) [@Bricker](https://boards.straightdope.com/u/Bricker)\ **Post date:** [June 6, 2006, 9:12pm UTC](https://boards.straightdope.com/t/senate-debates-bush-backs-anti-ssm-amendment-implications/359639/34 "2006-06-06T21:12:20Z")
> [@Miller](#): > > Which, of course, would have to include marriage rights, just as they were included under the 14th ammendment for inter-racial couples, right? Yes. Once such an amendment passed, then state laws that forbid same-sex marriage would be in violation of it. > [@bup](#): > > Doesn’t “equal protection under the law” already imply that a legal classification with legal benefits available to heterosexual couples but not gay couples is unconstitutional? > > IOW, without a constitutional amendment “in defense of marriage,” how could a state have any law which passes constitutional muster? No. Equal Protection Clause violations are analyzed under three different types of scrutiny. Laws that impact people in a racially disparate way are analyzed under “strict scrutiny.” Laws that impact genders differently are analyzed under an “intermediate scrutiny.” Laws that create other classifications, such as hetero/homosexual, are analyzed under a “rational basis” standard. ---
**Author:** ![DrDeth](https://avatars.discourse-cdn.com/v4/letter/d/b487fb/32.png) [@DrDeth](https://boards.straightdope.com/u/DrDeth)\ **Post date:** [June 6, 2006, 9:14pm UTC](https://boards.straightdope.com/t/senate-debates-bush-backs-anti-ssm-amendment-implications/359639/35 "2006-06-06T21:14:30Z")
> [@Menocchio](#): > > This is so naked an attempt to distract from Bush’s failings that I cannot believe that social conservatives don’t realize it. They may support an anti-gay amendment, but still be isulted by the gesture. > > They’ve got to know they’re being played for saps. I agree. It’s more Election year “stratergey”. ---
**Author:** ![Loopydude](https://avatars.discourse-cdn.com/v4/letter/l/e56c9b/32.png) [@Loopydude](https://boards.straightdope.com/u/Loopydude)\ **Post date:** [June 6, 2006, 9:14pm UTC](https://boards.straightdope.com/t/senate-debates-bush-backs-anti-ssm-amendment-implications/359639/36 "2006-06-06T21:14:57Z")
Indeed, the 14th Amendment, in light of _Loving v. VA_, is the only part of the Constitution I can see as relevant to the matter on a Federal level. _Baker v. Nelson_ may cast serious doubt on _Loving_’s power, however, I’m not sure. There is the matter of Nebraska, but it could be argued the Nebraska law was far too sweeping, and so was uniquely susceptible to 14th Amendment objections. Has this ruling been appealed, or has there rather been efforts to tidy up the law to make it less vulnerable? ---
**Author:** ![Bricker](https://avatars.discourse-cdn.com/v4/letter/b/977dab/32.png) [@Bricker](https://boards.straightdope.com/u/Bricker)\ **Post date:** [June 6, 2006, 9:24pm UTC](https://boards.straightdope.com/t/senate-debates-bush-backs-anti-ssm-amendment-implications/359639/37 "2006-06-06T21:24:18Z")
> [@BrainGlutton](#): > > Cite? :rolleyes: Pacific Employers Ins. Co. v. Indus- trial Accident Comm’n, 306 U.S. 493, 501 (1939); Phillips Petroleum Co. v. Shutts, 472 U.S. 797, 818 (1985); Wisconsin v. Pelican Insurance Co., 127 U.S. 265 , 8 S.Ct. 1370; Huntington v. Attrill, 146 U.S. 657 , 13 S.Ct. 224; Finney v. Guy, 189 U.S. 335 , 23 S.Ct. 558; Clarke v. Clarke, 178 U.S. 186 , 20 S.Ct. 873; Olmsted v. Olmsted, 216 U.S. 386; Hood v. McGehee, 237 U.S. 611; cf. Gasquet v. Fenner, 247 U.S. 16. ---
**Author:** ![Steve\_MB](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/steve_mb/32/5339_2.png) [@Steve\_MB](https://boards.straightdope.com/u/Steve_MB)\ **Post date:** [June 6, 2006, 9:35pm UTC](https://boards.straightdope.com/t/senate-debates-bush-backs-anti-ssm-amendment-implications/359639/38 "2006-06-06T21:35:53Z")
> [@BrainGlutton](#): > > Bush has, to no one’s great surprise, announced his support for the anti-gay-marriage amendment now being debated in the Senate. [http://www.chicagotribune.com/news/nationworld/chi-0606060114jun06,1,7688365.story?coll=chi-newsnationworld-hed](http://www.chicagotribune.com/news/nationworld/chi-0606060114jun06,1,7688365.story?coll=chi-newsnationworld-hed) > > 1. Is W doing this for any reason other than shoring up his social-conservative support base in the runup to November? > > 2. If he is doing it for that reason, will it work? How will this affect the Congressional elections? > > 3. Any chance the amendment will be approved by Congress? > > 4. Any chance it will be ratified by 3/4 of the states? > > (In this thread, let’s avoid discussion of whether SSM should or should not be allowed – we’ve already had plenty of threads on that. Let’s stick to political implications and fallout.) 1. No. It’s an obvious pander. 2. No. Outside the hard core who couldn’t be pried away from the GOP if you used the Jaws Of Life[tm], it’s just too obvious an attempt to divert attention away from the party’s miserable failures to rein in spending, deal with the immigration issue, etc. 3. No. 4. See previous answer. ---
**Author:** ![John\_Mace](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/john_mace/32/185_2.png) [@John\_Mace](https://boards.straightdope.com/u/John_Mace)\ **Post date:** [June 6, 2006, 10:48pm UTC](https://boards.straightdope.com/t/senate-debates-bush-backs-anti-ssm-amendment-implications/359639/39 "2006-06-06T22:48:31Z")
> [@Miller](#): > > Would you then object to ammending the constitution so that sexual orientation received the same level of scrutiny as race? I don’t think many on this board would. Would you be willing to live with not having strict scrutiny (or intermediate scrutiny, for that matter) be the judicial test if you floated that amendment and it failed? ---
**Author:** ![Miller](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/miller/32/481_2.png) [@Miller](https://boards.straightdope.com/u/Miller)\ **Post date:** [June 6, 2006, 11:00pm UTC](https://boards.straightdope.com/t/senate-debates-bush-backs-anti-ssm-amendment-implications/359639/40 "2006-06-06T23:00:25Z")
> [@Bricker](#): > > Yes. Once such an amendment passed, then state laws that forbid same-sex marriage would be in violation of it. Goddamit, I’d been building up to one specific question all along here, and I just went back and realized the whole thing was predicated on a mis-reading of your initial post. :smack: Anyway, thanks for your patience with my 20 Questions routine. > [@John Mace](#): > > I don’t think many on this board would. Would you be willing to live with not having strict scrutiny (or intermediate scrutiny, for that matter) be the judicial test if you floated that amendment and it failed? Well, I’d “live with it” in the sense that I wouldn’t eat a bullet over it, but I certainly would continue to push for the ammendment, even if it initially failed. 'Course, I doubt I’ll live long enough to see this country evolve to the point where even proposing such an ammendment would be feasible, so that’s pretty much a moot point. [Previous page](https://boards.straightdope.com/t/senate-debates-bush-backs-anti-ssm-amendment-implications/359639.md?page=1) [Next page](https://boards.straightdope.com/t/senate-debates-bush-backs-anti-ssm-amendment-implications/359639.md?page=3)