I realise that there are plenty of threads running about this subject, but I would like to explore a specific angle.
I note, as an outsider, that the US is considering changing its Constitution. I understand that this is a very big deal, since it has only happened 27 times in the past.
I also note that only one such amendment was subsequently repealed, and that this is now considered to have been an utterly foolish venture, completely at odds with the practicalities of human nature, which was always going to be repealed sooner or later after it was enacted. The general consensus appears, to me, to be that the US should have saved itself the time, money and embarrassment of the U-turn.
I speak, of course, of Prohibition.
There were those visionaries in the 1920’s who looked into the future, and around the rest of the world, and saw as clear as day what was going to happen. As society progresses and moves forward, it becomes more and more difficult to justify legal denial of consenting adults their wishes. The Amendment would be enacted, stick around for a few years while myriad loopholes and practical problems became apparent, and finally the whole sorry mess would be dismantled and disposed of.
Can anyone who supports the proposed 28th Amendment say, hand on heart, that it will last for decades? And if not, why bother in the first place? Is “The Prohibition of Gay Marriage” itself a resonant enough phrase to cause significant doubt at the outset of the entire venture?
Our society is becoming increasingly more tolerant and accepting of gays. The anti-gay marriage folk know this, which is why they are putting all their strength into pushing this amendment. But all they will end up doing is delay the inevitable. I don’t believe an amendment designed purely to discriminate against a class of people will stand up against the test of time.
As a minor note, the U.S. constitution wasn’t changed 27 times. The first ten amendments, known collectively as the Bill of Rights, were ratified as a package.
In any case, I personally a doubt an amendment that restricts freedom has a chance, since all the others serve to define the government, place restrictions on what government can do, and determine who can vote for the government, i.e. the constitution defines the limits of the state, not the citizens. The whole thing has been likened, correctly, to that anti-flag-birning amendment kicked around a few years ago. It’s blatant election-year politicking.
What a pity that the US president doesn’t have the common sense, historical perspective, and insight as the OP. To muck with the Constitution for political gain in an election year should be an unpardonable sin. Thank goodness that our Founding Fathers made the process so cumbersome that such cheap political maneuvers will not succeed. Prohibition is an excellent comparison, you’d think we would have learned something by now.
Actually, if it does pass it will stick a lot better than Prohibition will. Prohibition was an attempt to prevent manufacture and consumption of a substance. Whether it was legal or not it was still obtainable, so you could pretty much break the law at will, and that undermined the whole thing.
With marriage, it is not a substance, it is not something you can sneak around. It is nothing more or less than a legal status. If someone is denied that legal status, there is no way around it. You can’t just distill it in a bathtub. At that point it’s all over.
Gay marriage Prohibition is a very different beast from alcohol Prohibition. Thank God it’ll never pass.
Actually, I don’t think the Prohibition comparison is a good one. Alcoholic beverages have been with us since before the beginning of recorded history, and have played a central role in many of society’s institutions. Heck, during Prohibition there had to be an exemption for churches to use wine in Communion. Though Prohibition had the backing of some Christian groups, it wasn’t based on the idea that drinking was sinful; the coalition of those involved in the temperance movement included many who considered themselves “progressives”, since it was thought that drinking alcohol was unsanitary and unhealthful and in the Brave New World of the Future when makind had perfected himself, we’d all be wise enough to give up drinking entirely.
So Prohibition was an attempt to ban something that had thousands of years of momentum behind it. Same-sex marriage, on the other hand, has never existed anywhere outside of Canada and a couple of European states in the last few years. The FMA is an attempt to block what would be a huge social change, not effect one.
Homosexuality is probably older than alcohol. The only reason that gay marriage is a relatively new innovation is that homosexuals have been persecuted for centuries and are now just beginning to find acceptance and stop hiding out of fear. Alcohol has thousands of years behind it, homosexuality has thousands of years behind it. To ban either by amending the Constitution is silly. In fifty years, people who fear gay marriage are going to look just as quaint as those who opposed women’s suffrage in the early 20th century do now.
There is a fair argument that a substantial part of the support for prohibition was as much an effort to bring immigrant into line (those wine drinking Italians and those beer swilling Germans) as it was a social reform movement instigated by the Women’s Christian Temperance Union and the like minded (Father, dear Father, come home with me now…).
By the same token, in the present proposal we see a concurrence of discriminatory motives and an impulse toward the use of the police power to enforce public and private morals. Lord knows we have seen it before. We had Savanarola in late Renaissance Florence. We had Cromwell’s protectorate in 17th Century England and a parallel movement in Colonial New England. There are reasonable and compassionate and responsible people who are offended by homosexuality and what they see as a social recognition and acceptance of it. Those poor souls, however, are in bed with the holders of the worst impulses toward homophobia that we have.
What history teaches us is that the Blue Stocking do not prevail. While here may be a considerable effort to forestall social change, change will come. When the US Supreme Court is willing to invalidate adult sodomy statutes you know that it is only a matter of time before same sex marriage gains acceptance.
In the meantime, the proposed amendment gives the President a wonderful chance to throw a crumb to the Social Conservatives (who are starting to realize that all they are getting from this Administration is a friendly ear and so much lip service) and rally the troops for November.
The analogy to prohibition is tempting, but has some key flaws:
Alcohol was legal before prohibition, gay marriage has never been legal (although it might become so soon in MA).
Drinking alcohol affected the majority of the polulatiion. Gays make up well under 10%.
There is a “third way” in this case-- civil unions.
I think there is a good chance the amendment will never pass (although it’s far from a slam dunk that it won’t), but if it does, it’ll be way more than a decade before it’s repealed. We’ve had prohibition with soft drugs like marijuana for a long, long time-- even though most people under 50 have smoked it at some time in their lives.
Oh yeah, one more thing. This amendment, as unsavory as it is, does not prevent gays from living together, having sex, adopting children (or having them, in the case of lesbians) forming “civil unions” that remove most if not all the legal barriers to living the life of a married couple, or even getting married in a Church that allows it.
Except that the proposed amendment would also bar states from legalizing any civil unions or domestic partnerships which confer any of the “incidents of marriage” to gay couples. It would also rip apart all the civil unions so far created in Vermont.
The extremity of this amendment cannot be overstated. It is the greatest advancement of bigotry by legislation since the Jim Crowe laws.
I look forward to the day when everyone supporting this bill burns in Hell for all eternity.
Again with this? Although I see you’ve toned it down a little bit from the last time I saw it. There you said you wished “[post=4576391]If America passes this amendment, then I hope America burns and dies.[/post]” At least your hate is aimed more accurately today and I’m glad to see that you’re becoming more tolerant. :rolleyes:
Strictly speaking, I’m not sure this is the case. The amendment speaks in terms of “marriage,” not of civil unions. It could be credibly argued that it does not forbid civil unions.
Having said that, I still think it a shitty move from the Bush administration. I remember back when federalism and state’s rights actually mattered to the Republican party. These matters should be left to the states, and if a state wants to alter its laws to extend marriage to homosexuals, it should be able to.
I tend to agree with Dewey on this. The wording in the amendment wrt civil unions is somewhat ambiguous, but I think it (or the eventual amendment that gets voted on) will clearly allow civil unions. Anything that doesn’t will absolutely be DOA. Bush has been clear that he’s OK with civil unions, although I don’t know if there is a concensus exists on what those actually are.
Somehow, I doubt that will change this opinion of yours:
From what I’ve heard, it’s pretty vague on the subject. I’m wondering though, if it were to ban civil unions would it nullify civil unions already performed in Vermont, or would that be ex post facto? How about if Massachusetts legalizes gay marriage before an amendment was ratified?
FTR, here is the language of Rep. Musgrave’s amendment, which as I understand it is the one Bush is supporting:
The first sentence would appear to allow civil unions. The second sentence…well, not so much. That “legal incidents thereof” would appear to sink civil unions as an alternative.
No; the ex post facto restriction only applies to criminal laws, which is why the government can get away with things like retroactive tax increases.
More to the point, this is an amendment to the federal constitution, so it would trump any preexisting language that conflicted with it. Even if ex post facto applied, or if someone tried a takings clause argument, or whatever, it would necessarily fail because the new language trumps the old. That’s what it means to amend something.
Doesn’t matter. Just as the thirteenth amendment invalidated preexisting state laws allowing slavery, so would this amendment nullify any existing state laws permitting gay marriage.
Although the second sentence also includes “state law”, could an argument be made that a law could still “allow” incidents of marriage, even if no law can “require” it?
If there was any kind of legal consensus that this amendment would not allow civil unions, it would most emphatically be DOA. I still wonder, though, why the wording is such as it is-- to be somewhat equivocal about the actual intent.
Thanks to all concerned for expanding upon an issue I only have superficial knowledge of.
To clarify, I was not seeking to compare the prohibited entities themselves since they are clearly distinct in important ways. My point was merely that, if this amendment will probably be repealed at some point in future (even decades perhaps), then the embarrassment of Prohibition might serve as a warning not to bother.
No, it can’t. The language clearly bars any state from guaranteeing the incidents of marriage to anyone who is not married (as defined by the amendment). That bars civil unions. Any argument to the counter requires that there be some way for a court to apply the law without construing it. And that is simply ludicrous.
That the Musgrave Amendment does not prevent civil unions is one of the great lies of this Administration. It must be countered at every possible turn.