# The 28th Amendment: A return to Prohibition **URL:** \ **Category:** Great Debates\ **Created:** [February 25, 2004, 10:37am UTC](https://boards.straightdope.com/t/the-28th-amendment-a-return-to-prohibition/231072 "2004-02-25T10:37:49Z")\ **Posts on this page:** 20\ **Page:** 2
**Author:** ![Left\_Hand\_of\_Dorkness](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/left_hand_of_dorkness/32/7156_2.png) [@Left\_Hand\_of\_Dorkness](https://boards.straightdope.com/u/Left_Hand_of_Dorkness)\ **Post date:** [February 26, 2004, 2:02pm UTC](https://boards.straightdope.com/t/the-28th-amendment-a-return-to-prohibition/231072/21 "2004-02-26T14:02:55Z")
The way I read Musgrave, the second sentence doesn’t **prevent** the incident of marriage from being given to unmarried couples; it just prevents courts from reading a **right** to such incidents into a state or federal constitution. Such rights, in other words, would only be attainable through legislatures. Still a fucked up amendment, though. Daniel ---
**Author:** ![Shodan](https://avatars.discourse-cdn.com/v4/letter/s/9f8e36/32.png) [@Shodan](https://boards.straightdope.com/u/Shodan)\ **Post date:** [February 26, 2004, 2:20pm UTC](https://boards.straightdope.com/t/the-28th-amendment-a-return-to-prohibition/231072/22 "2004-02-26T14:20:36Z")
> [@](#): > > Marriage in the United States shall consist only of the union of a man and a woman. Neither this Constitution or the constitution of any State, nor state or federal law, shall be construed to require that marital status or the legal incidents thereof be conferred upon unmarried couples or groups. Am I right in thinking that this is primarily a tax law? ISTM that many of the benefits of marriage, apart from filing income tax jointly, can be obtained for gay couples already. One can already make out a will naming your partner as your inheritor, give them durable power of attorney, make out a living will giving him or her medical power of attorney, and live together. Some companies even allow gay employees to cover their partners under their health policies, do they not? Would it be possible to put together a standard contract/will/legal document to define all this, have a gay couple each sign it, and get many of the benefits of a civil union? Apart from joint tax filing and family coverage for health care, are there other benefits that gay couples want? I am trying to figure out the difference between “civil union” and “marriage” that is **not** religiously based. But if the Musgrave amendment should pass - which I doubt will happen - could a gay-friendly company be prevented from offering family coverage to unmarried couples? Regards, Shodan PS - > [@](#): > > I look forward to the day when everyone supporting this bill burns in Hell for all eternity. Thanks for your thoughts, Mr. Phelps. :rolleyes: ---
**Author:** ![KellyM](https://avatars.discourse-cdn.com/v4/letter/k/57b2e6/32.png) [@KellyM](https://boards.straightdope.com/u/KellyM)\ **Post date:** [February 26, 2004, 2:29pm UTC](https://boards.straightdope.com/t/the-28th-amendment-a-return-to-prohibition/231072/23 "2004-02-26T14:29:28Z")
> [@Left Hand of Dorkness](#): > > The way I read Musgrave, the second sentence doesn’t **prevent** the incident of marriage from being given to unmarried couples; it just prevents courts from reading a **right** to such incidents into a state or federal constitution. Such rights, in other words, would only be attainable through legislatures. That’s what the Right wants you to believe. However, anyone trained in legal interpretation knows that that’s not what the Musgrave Amendment means. In order for a court to vindicate a right based on a statute (or a constitution), it **must** construe that statute (or constitutional clause). Let’s take a hypothetical same-sex couple John and Mark, in a state with a statute stating that “marriage in this state shall be between two consenting adults of either sex”, and the Musgrave Amendment. John and Mark obtain a marriage license and solemnize it within that state. Mark attempts to obtain insurance from John’s employer and is denied because he is “not John’s spouse”. Mark sues. In order for the state court to find for Mark, it must construe the statute defining marriage in that state so as to find that Mark is John’s spouse. And such construction is prohibited by the Musgrave Amendment, so that state court cannot do so. It has to “read the right” into the statute. Too bad, Mark, you lose. Your marriage isn’t worth the paper it’s printed on because all of your rights thereto can be stripped away at any time and you can’t fight it. You just have to hope that nobody decides to discriminate against you. The Republicans know exactly what they’re doing when they word it that way. A right that cannot be vindicated in court is not a right. It doesn’t matter how clear the statute is. Statutes don’t decide cases; judges do, and construction is an essential and unavoidable part of statutory interpretation even of the most clear statute. And the clear purpose of the Musgrave Amendment is to tie the hands of judges: it ties them so tightly that they would be required to read “white” and say “black”. Perhaps Ms. Musgrave is not aware that her language would be interpreted thus. However, we really can’t expect much from a representative from a state that tried to shove this gem into its Constitution: Neither the State of Colorado, through any of its branches or departments, nor any of its agencies, political subdivisions, municipalities or school districts, shall enact, adopt or enforce any statute, regulation, ordinance or policy whereby homosexual, lesbian or bisexual orientation, conduct, practices or relationships shall constitute or otherwise be the basis of or entitle any person or class of persons to have or claim any minority status, quota preferences, protected status or claim of discrimination. This Section of the Constitution shall be in all respects self-executing. (This amendment was adopted, but was ultimately [thrown out](http://caselaw.lp.findlaw.com/scripts/getcase.pl?court=us&vol=000&invol=U10179) by the United States Supreme Court.) ---
**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:** [February 26, 2004, 3:44pm UTC](https://boards.straightdope.com/t/the-28th-amendment-a-return-to-prohibition/231072/24 "2004-02-26T15:44:28Z")
**KellyM** : The idea that the Musgrave amendment will allow civil unions is being widely reported in the mainstream (TV) News Media. I haven’t seen any debate on any of the cable news channles about this. Here’s a good article in the [Washington Post](http://www.washingtonpost.com/ac2/wp-dyn/A40866-2004Feb13?language=printer) which gives the history of the amendment and explains why the language is as sloppy as it is. There does seem to be some disagreement about civil unions, but your view seems to be the much more widely held view. > [@](#): > > Though it is just two sentences long, the amendment’s possible interpretations are a matter of furious debate among constitutional scholars and political activists, with some contending that it would allow Vermont-style civil unions and others saying it would not. It seems to have more “polticial activists” than constitutional scholars saying that it will allow civil unions. ---
**Author:** ![Dewey\_Cheatem\_Undhow](https://avatars.discourse-cdn.com/v4/letter/d/13edae/32.png) [@Dewey\_Cheatem\_Undhow](https://boards.straightdope.com/u/Dewey_Cheatem_Undhow)\ **Post date:** [February 26, 2004, 4:18pm UTC](https://boards.straightdope.com/t/the-28th-amendment-a-return-to-prohibition/231072/25 "2004-02-26T16:18:51Z")
> [@KellyM](#): > > 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. I agree. You _did_ catch my very next post where, upon noting the actual language of the amendment (as opposed to the secondhand sources I had read in the media), I specifically stated that the second sentence would likely forbid civil unions, didn’t you? ---
**Author:** ![Dogface](https://avatars.discourse-cdn.com/v4/letter/d/9d8465/32.png) [@Dogface](https://boards.straightdope.com/u/Dogface)\ **Post date:** [February 26, 2004, 7:51pm UTC](https://boards.straightdope.com/t/the-28th-amendment-a-return-to-prohibition/231072/26 "2004-02-26T19:51:09Z")
Let’s go back to the text of the proposal: - Marriage in the United States shall consist only of the union of a man and a woman. Neither this Constitution or the constitution of any State, nor state or federal law, shall be construed to require that marital status or the legal incidents thereof be conferred upon unmarried couples or groups.\* People are substituting wishful thinking for interpretation when it comes to the word “require”. It’s very simple. Marriage law REQUIRES that my employer, my insurer, my creditors, and others treat me and my wife according to certain standards WHETHER THEY WANT TO OR NOT. If a couple is legally married, the law REQUIRES they get treated in a certain way, making no distinction among various “classes” of married people. Now, this would be very different from if the law ALLOWED such treatment. Law REQUIRES treatment: All legal spouses of employees get the lower insurance rate. Landlords are prohibited from denying housing to a spouse if occupancy rules are otherwise observed. Law ALLOWS treatment: Landlords are PERMITTED to deny occupancy. Insurance companies are PERMITTED to deny coverage. If a state is not permitted to REQUIRE “marital status or the legal incidents thereof” for a specific group (same-sex couples), that means that everybody in that state is permitted to ignore any such claims of status–deny rights of custody, deny housing, deny insurance, deny inheritance, and they may legally do so as long as the state does not “require that marital status or the legal incidents thereof be conferred”. If no Constitution nor law of any state or the federal government may “require that marital status or the legal incidents thereof be conferred”, that means that a state might “allow” such things all they want–and there would be NO LEGAL RECOURSE if a company, a local sheriff, or anybody else at all wanted to deny these things. The language is actually very clear. ---
**Author:** ![KellyM](https://avatars.discourse-cdn.com/v4/letter/k/57b2e6/32.png) [@KellyM](https://boards.straightdope.com/u/KellyM)\ **Post date:** [February 26, 2004, 8:05pm UTC](https://boards.straightdope.com/t/the-28th-amendment-a-return-to-prohibition/231072/27 "2004-02-26T20:05:51Z")
> [@John Mace](#): > > The idea that the Musgrave amendment will allow civil unions is being widely reported in the mainstream (TV) News Media. I haven’t seen any debate on any of the cable news channles about this. Yes, I think it’s interesting that the media is totally ignoring the liberal response. “Fair and balanced coverage” demands it, I suppose. ---
**Author:** ![Blalron](https://avatars.discourse-cdn.com/v4/letter/b/35a633/32.png) [@Blalron](https://boards.straightdope.com/u/Blalron)\ **Post date:** [February 26, 2004, 8:21pm UTC](https://boards.straightdope.com/t/the-28th-amendment-a-return-to-prohibition/231072/28 "2004-02-26T20:21:34Z")
> [@Dewey Cheatem Undhow](#): > > I agree. You _did_ catch my very next post where, upon noting the actual language of the amendment (as opposed to the secondhand sources I had read in the media), I specifically stated that the second sentence would likely forbid civil unions, didn’t you? Makes you proud to be a Republican, huh? Still voting for Dubya this year? ---
**Author:** ![Blalron](https://avatars.discourse-cdn.com/v4/letter/b/35a633/32.png) [@Blalron](https://boards.straightdope.com/u/Blalron)\ **Post date:** [February 26, 2004, 8:35pm UTC](https://boards.straightdope.com/t/the-28th-amendment-a-return-to-prohibition/231072/29 "2004-02-26T20:35:26Z")
> [@Blalron](#): > > Makes you proud to be a Republican, huh? Still voting for Dubya this year? I mistakenly believed this to be in the BBQ pit. The above is an inflammatory, rhetorical question not posed for serious debating purposes. Pay it no heed. ---
**Author:** ![Dewey\_Cheatem\_Undhow](https://avatars.discourse-cdn.com/v4/letter/d/13edae/32.png) [@Dewey\_Cheatem\_Undhow](https://boards.straightdope.com/u/Dewey_Cheatem_Undhow)\ **Post date:** [February 27, 2004, 3:16am UTC](https://boards.straightdope.com/t/the-28th-amendment-a-return-to-prohibition/231072/30 "2004-02-27T03:16:02Z")
> [@Blalron](#): > > I mistakenly believed this to be in the BBQ pit. The above is an inflammatory, rhetorical question not posed for serious debating purposes. Pay it no heed. Never fear; I don’t pay heed to anything you write. 😛 And again, just FTR, I oppose the Musgrave amendment. ---
**Author:** ![Leaper](https://avatars.discourse-cdn.com/v4/letter/l/4bbf92/32.png) [@Leaper](https://boards.straightdope.com/u/Leaper)\ **Post date:** [February 27, 2004, 4:35am UTC](https://boards.straightdope.com/t/the-28th-amendment-a-return-to-prohibition/231072/31 "2004-02-27T04:35:41Z")
I could swear that I’ve read some legal experts, and some who favor the amendment (who admittedly are not all legal experts), who claim that it WILL bar civil unions. I’ll have to dig for cites. ---
**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:** [February 27, 2004, 6:11am UTC](https://boards.straightdope.com/t/the-28th-amendment-a-return-to-prohibition/231072/32 "2004-02-27T06:11:41Z")
After listening to the vairous views on the Musgrave amendment and civil unions, I’m going to make a prediction: The amendment that ultimately makes it to a vote in Congress will correct the sloppy wording in the Musgrave amendament in order to clearly (from a legal standpoint) allow civil unions at the state level. The folks pushing this amendment may be stuanchly anti-gay, but they aren’t so stupid as to offer up an amendment that will be so obviously DOA as to be meaningless. ---
**Author:** ![Duckster](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/duckster/32/1244_2.png) [@Duckster](https://boards.straightdope.com/u/Duckster)\ **Post date:** [February 27, 2004, 6:45am UTC](https://boards.straightdope.com/t/the-28th-amendment-a-return-to-prohibition/231072/33 "2004-02-27T06:45:24Z")
> [@](#): > > There are 9.7 million Americans living with an unmarried different-sex partner and 1.2 million American living with a same-sex partner. 11% of unmarried partners are same-sex couples. > > The number of unmarried couples living together increased 72% between 1990 and 2000. > > The number of unmarried couples living together has increased tenfold between 1960 and 2000. – U.S. Census Bureau, 2000, as reported [here](http://www.unmarried.org/statistics.html). Keep in mind that the amendment as written would also apply to those who are not gay, at least according to the statistics. ---
**Author:** ![elucidator](https://avatars.discourse-cdn.com/v4/letter/e/8edcca/32.png) [@elucidator](https://boards.straightdope.com/u/elucidator)\ **Post date:** [February 27, 2004, 1:30pm UTC](https://boards.straightdope.com/t/the-28th-amendment-a-return-to-prohibition/231072/34 "2004-02-27T13:30:42Z")
Would that mean Grandma Fenster, collecting surviving spouse benefits since the death of her common-law husband, would not legally be able to continue? ---
**Author:** ![Left\_Hand\_of\_Dorkness](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/left_hand_of_dorkness/32/7156_2.png) [@Left\_Hand\_of\_Dorkness](https://boards.straightdope.com/u/Left_Hand_of_Dorkness)\ **Post date:** [February 27, 2004, 1:53pm UTC](https://boards.straightdope.com/t/the-28th-amendment-a-return-to-prohibition/231072/35 "2004-02-27T13:53:17Z")
Okay, I believe you, **Kelly** and **Dewey**. I’ve read your explanation and the amendment more than once, but I don’t get where you’re coming from at all. Specifically, you offer this hypothetical: > [@](#): > > Let’s take a hypothetical same-sex couple John and Mark, in a state with a statute stating that “marriage in this state shall be between two consenting adults of either sex”, and the Musgrave Amendment. John and Mark obtain a marriage license and solemnize it within that state. Mark attempts to obtain insurance from John’s employer and is denied because he is “not John’s spouse”. Mark sues. In order for the state court to find for Mark, it must construe the statute defining marriage in that state so as to find that Mark is John’s spouse. Sure, in this case, the Musgrove amendment would require the state to rule Mark and John unmarried, due to the first sentence of Musgrove. But this hypothetical isn’t dealing with civil unions, it’s dealing with marriages. How would it change the hypothetical to say that John and Mark had obtained a civil union? Specifically, how would the court be able to apply Musgrove to a civil union? Daniel ---
**Author:** ![KellyM](https://avatars.discourse-cdn.com/v4/letter/k/57b2e6/32.png) [@KellyM](https://boards.straightdope.com/u/KellyM)\ **Post date:** [February 27, 2004, 2:48pm UTC](https://boards.straightdope.com/t/the-28th-amendment-a-return-to-prohibition/231072/36 "2004-02-27T14:48:30Z")
> [@Left Hand of Dorkness](#): > > Sure, in this case, the Musgrove amendment would require the state to rule Mark and John unmarried, due to the first sentence of Musgrove. But this hypothetical isn’t dealing with civil unions, it’s dealing with marriages. How would it change the hypothetical to say that John and Mark had obtained a civil union? Specifically, how would the court be able to apply Musgrove to a civil union? I misstated my hypothetical; I should have said that the state has a civil union statute and that John and Mark obtained a civil union, which under the state law makes Mark and John “the equivalent of spouses” with “the sames rights and privileges as a married couple”. The law would still preclude Mark from suing to obtain insurance coverage as a spouse (an “incident of marriage”) because every court is forbidden from interpreting state law so as to guarantee an incident of marriage to persons who are not married (as defined by Musgrave). I see that this exact hypothetical is mentioned in the Washington Post article that someone else linked earlier. I hadn’t seen that when I proposed my hypothetical. Robert Bork’s comments quoted in that article are especially telling: it’s clear the intent of that particular drafter is to make the receipt of the incidents of marriage of spouse-equivalents a matter of random chance rather than certainty of law. It’s also telling that the sponsors and authors of the legislation are telling the mainstream that it doesn’t bar civil unions, while at the same time telling the Religious Right that it does. Someone is being lied to. ---
**Author:** ![KellyM](https://avatars.discourse-cdn.com/v4/letter/k/57b2e6/32.png) [@KellyM](https://boards.straightdope.com/u/KellyM)\ **Post date:** [February 27, 2004, 2:54pm UTC](https://boards.straightdope.com/t/the-28th-amendment-a-return-to-prohibition/231072/37 "2004-02-27T14:54:43Z")
> [@John Mace](#): > > The folks pushing this amendment may be stuanchly anti-gay, but they aren’t so stupid as to offer up an amendment that will be so obviously DOA as to be meaningless. The folks pushing this amendment want civil unions banned. That’s what they want, and they think that the force of their moral superiority is sufficient to accomplish that. Now, the Administration, in backing the Amendment, isn’t expecting it to pass. They are hoping that it fails, preferably by a close vote and absolutely before the November elections. This will enable them to call every last Senator (and Representative) who voted against it a “fag-lover” who “opposes the American instutition of marriage”, and hopefully swing a few more seats to the Republican side of the aisle. All while proving once again to the Religious Right that Bush really is their man (even though he isn’t). This is pure politics, folks. It’s not that Bush hates gays (in fact, all the evidence is that Bush bears no personal ill will toward gay people at all and would probably support gay rights if doing so wasn’t career suicide for him) but that Bush wants the Republicans to win and has no compunctions whatsoever in crucifying anyone and anything that stands in the way of Republican domination of the government. I suppose the ends really do justify the means. :rolleyes: ---
**Author:** ![Left\_Hand\_of\_Dorkness](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/left_hand_of_dorkness/32/7156_2.png) [@Left\_Hand\_of\_Dorkness](https://boards.straightdope.com/u/Left_Hand_of_Dorkness)\ **Post date:** [February 27, 2004, 3:06pm UTC](https://boards.straightdope.com/t/the-28th-amendment-a-return-to-prohibition/231072/38 "2004-02-27T15:06:18Z")
Ah! I got it now. Thanks, **Kelly**! Actually, the big thing is that I went back and reread the amendment. Somehow on my first few readings I missed the phrase “nor state or federal law.” I thought the second sentence dealt solely with constitutions, not state/federal laws. Your explanation got me to read that sentence more carefully. Yep, it’s a stinker, all right. Daniel ---
**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:** [February 27, 2004, 3:08pm UTC](https://boards.straightdope.com/t/the-28th-amendment-a-return-to-prohibition/231072/39 "2004-02-27T15:08:48Z")
**KellyM** : That strategy appears to be backfiring. Im seeing quite a few Republicans going on record that they won’t vote for this amendment. Some because of the wording, and others because they don’t see an imminent threat ( 🙂 ) to the DOMA and prefer to take a go slow approach. Not much that the amendment backers can do about the latter types, but if they want to get the former types on board, they’ll need to reword their proposed amendment. ---
**Author:** ![SentientMeat](https://avatars.discourse-cdn.com/v4/letter/s/43a26b/32.png) [@SentientMeat](https://boards.straightdope.com/u/SentientMeat)\ **Post date:** [February 27, 2004, 3:14pm UTC](https://boards.straightdope.com/t/the-28th-amendment-a-return-to-prohibition/231072/40 "2004-02-27T15:14:30Z")
quote]Now, the Administration, in backing the Amendment, isn’t expecting it to pass. They are hoping that it fails, preferably by a close vote and absolutely before the November elections. [/quote] The article I linked to in the OP did suggest that the whole business is something of a gamble. Would it be possible/beneficial for the Democrats to somehow _delay_ the vote on the Amendment in order to be able to paint the Administration as discriminatory meanies who want to make an amendment which will inevitably be repealed eventually? [Previous page](https://boards.straightdope.com/t/the-28th-amendment-a-return-to-prohibition/231072.md?page=1) [Next page](https://boards.straightdope.com/t/the-28th-amendment-a-return-to-prohibition/231072.md?page=3)