So, many pundits believe that the Massachusetts ruling will give new life to a Constitutional amendment making gay marriage illegal forevermore, basically.
Do you think this issue is of enough import to deserve a Constitutional amendment? If so, or even if not, how serious do you think an issue needs to be to seriously consider amending the Constitution? In the case of gay marriage, do you think the public at large (or even the government itself) thinks it’s THAT important?
The regulation of marriage has been a state responsibility and I see no reason it shouldn’t remain that way. I would not like to see the US constitution amended in this way.
Since it would require 3/4 of the legislatures to pass an amendment, I would hope that enough states would see that it is their best interest not to cede this authority to the federal government.
As to the general populace, based on current polling, I wouldn’t be surprised if such an amendment received a majority vote in the country. If there were a procedure to amend the constituion by popular vote, one would assume that it would require something like a 2/3 majority vote to pass. Under those circumstances, I doubt very strongly it would pass.
This is absolutely an inappropriate subject for the federal constitution – unless the federal Supreme Court were to discover a right to same-sex marriage exists in the federal constitution. If that were to occur, a clarifying amendment would be in order, that refuted that finding and left the power to regulate marriage to the states.
Unfortunately, Leaper, as with flag-burning or, a century ago, Prohibition, large segments of the American populace and political apparat see elevation of an issue to constitutional rank as a way to forever trump anyone in any US jurisdiction from even trying to pass a law allowing Bad Things<tm>. That is not good – the Constitution is NOT a penal code.
IANAL, but:
IMO a Constitutional amendment is required in order to update a key part of the original constitution itself (e.g.: senator elections, presidential succession); make a change in the organization, powers or functionings of the Federal Government that the original did not empower the Congress to do by ordinary statute (e.g. income taxes, DC electors); or make clear the protection of a fundamental right that the original text left unprotected (e.g. the entire Bill of Rights); or set forth a common nationwide rule on something that is critical that it be the same for every single American Citizen and be immune from state-by-state variation(e.g. Bill o’Rights, again, + 14th Amendment).
What may trigger the situation that Bricker describes is if Mass. finds no way to alter its own constitution to render the decision academic within the deadline. Then, when the first actual Marriage Licenses for same-sex couples are issued, that triggers the (Federal) “Defense of Marriage Act” that has been in effect since the Clinton admin – the federal government will refuse to recognize them as a family unit for tax/Social Security purposes and tell other states they do NOT have to give “full faith and credit” to that License. THEN you get a challenge of the constitutionality of DOMA. Then what?
Which did I miss?
No matter what, the anti-gay-marriage folks will scream bloody murder and demand an Amendment.
What bothers me at this point is that 37 states have already passed their own equivilent of DOMA or amended their state constitution to define marriage as between one man and one woman. That’s one state short of the required 38 (3/4 of the states).
If the US constitutional amendment gets thru Congress and is submitted to the states, I can easily see many (if not all of) the states say “we’ve already decided this” and give it a quick ‘yea’ vote.
That leaves one state legistature left to pass it and pesto it’s part of the US constitution. I think it can happen much more quickly than anyone realises.
It will go the way of Prohibition. Watch for stories about stable and monogamous gay couples living in a community of divorcees broken down families to crop up.
Already popping up. Two columns in the Washington Post today and a op-ed piece on NPR this morning.
Freyr:
You may be correct in your analysis, but I’ll point out two things you’ve neglected:
The DOMA, at the federal level, act is really aimed at allowing states to opt out of recognizing gay marriages from another state.
States may want to disallow gay marriage, but they may not want it done at the federal level. As long as they don’t have to recognize gay marriage from another state, they don’t need the additional oomph of a federal constitutional amendment.
maybe it’s just me, but i read the OP thinking he/she meant constitutional amendments at the state level. recognizing that states have the right to regulate marriage laws is easy enough to rule out the idea of a federal amendment.
at any level, i believe that in order to warrant an amendment, there must be something that is generally wrong with the original. in the US constitution, that it did not extend the rights it granted to all people might be an example of something that was wrong with the original draft.
in the case of an anti-gay-marriage amendment, the thing that would be wrong would obviously be the idea that everyone deserves due process or equal protection of the law. and of course, voters and legislators will think of it this way, and realize how foolish they’re being. oh wait…
OK, at State Constitution level things are slightly different since some states are more serious about their constitutions than others. That said, as a rule the SC’s are loaded with a lot more technical/administrative/procedural/operational legislation content than the Federal(*); and it is not uncommon for a State Constitution to be amended in precisely this sort of situation: a Court “finds” a right in the interpretation, and it becomes a question about whether you’ll leave the Court as the last word on it, or you’ll actually write down explicitly in the text what is it that “We The People of The State(or Commonwealth) of _______” really mean to say about that particular issue.
(*this is also found in a LOT of modern national constitutions… )
Actually, I was wondering about both, but I was especially interested in the Federal level, since all the agitating seems to have been coming from there. But feel free to address either!
Just curious, Bricker. When the federal Supreme Court discovered a right to interracial marriage existing in the federal constitution, did you think it would have been appropriate to pass a clarifying amendment that refuted that finding?
It’s an attempted delay tactic. The extreme right knows they’re going to lose this issue eventually, like they lost civil rights for women and minorities. They’re hoping to get an amendment now because they might be able to get a supermajority, and they’re hoping that it would take a much longer time for a supermajority to swing around, if ever. They’ve got the South on this one for good, and a lot of the Midwest as well. If they can swing a few states, it could be a century before the measure could be reversed.
The underlying issue at hand is a battle between proponents of natural law and proponents of legal positivism. I’ll probably botch this explanation up.
Natural law proponents see the world has having an inherent order that existed before and without the state. An example of this is the Declaration of Indepence, wherein Thomas Jefferson wrote, “We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable Rights…”.
Legal Positivist feel that the law is the only source of right and wrong. Nazi war criminals tried to use this rational at the Nuremberg trials. They said that because they were following the orders of the lawful and popularlly supported government of Germany, that they could not be convicted of crimes. That other states could not impose an alien morality upon them. (BTW, this defense did not work, and most of them were executed.)
Since the traditional husband-wife family existed before the state, a natural law proponent would hold that the state should continue the institution that is the basis of our society.
The legal positivist sees marriage as a legal contract between two parties which confers upon them special benefits from the government. Thus, whether the individuals involved are a man and woman, a man and man, or a woman and woman, it doesn’t really matter.
As far as my opinion on the constitutionally amendment:
I would give deference to the states as to define what is a marriage. In my state, I would not support marriage between anyone but a man and a woman.
But, because of the full faith and credit clause I don’t support a constitutional amendment. An amendment that allows the individual states to not accept the marriages that are not legal within their own states.
I would probably support the broader amendment as well if it looked like it might actually make it through the process with more ease. An amendment that would define marriage as between a man and a woman. Only because amendments are very hard to pass, and if this looked like it might pass, the chances of it failing and the amendment I prefer suceeding, would be very low.
Article IV Section 1 of the United States Constitution: “Full faith and credit shall be given in each state to the public acts, records, and judicial proceedings of every other state. And the Congress may by general laws prescribe the manner in which such acts, records, and proceedings shall be proved, and the effect thereof.”
BTW, I am not a fundy or a Republican. But, I probably will vote for President Bush in the next election but not because of the gay marriage issue.
Cite?
John Mace, I agree with your assessments. The only problem is, that while your arguments are reasoned and logical, the debate about the amendment won’t be. For whatever reason, this is a hot button issue with many people. The logic and reason of whether this is a issue best handled by the states or federal government will be lost the emotional tide of "we can’t let those homosexuals defile the sacred institution of marriage!"
Since the traditional same-sex union existed before the state, a natural law proponent would hold that the state continue the institution that is one of the many bases of our society.
Got anything else?
i was talking politics with a friend tonight, and he made what it feel is an excellent point. he pointed out that the way america in general feels about homosexuality is that they just don’t care, as long as they don’t have to witness it. in light of that, i think that if most americans were confronted with the facts that 1) if same-sex marriage were allowed, the gay community would no longer be pushing it as an issue, and 2) they are neither hurt nor helped by allowing homosexual marriage and that they don’t have to do anything (such as think about gay people) to allow it, i think the popular opinion could very quickly turn around in support of same-sex marriage.
considering those things, states’ rights on legislating marriage issues, and how much of an issue a federal amendment would become, i have to think that while most americans when confronted say the don’t support allowing same-sex marriages, they would be at least as against a federal constitutional amendment outlawing it.
i’m not positive same-sex unions existed before “the state” (referring to the government of the USA), at least not as such a hot issue. but i must contend that the fact that it does now is based on natural law, rather than “legal positivism”, as explained by rpavlick3. in my opinion, the reason homosexuality is such a prevalant social issue now where it wasn’t in the past is because of how far advanced our society is.
in the past, survival was about the best a person could hope for. with the recent population boom (were there more people born in the past 100 years than in the entire history of mankind previously?), survival and reproduction are no longer the goals of humankind. the changing needs of humankind allow us to explore issues that didn’t previously exist. there is no evolutionary reason to prohibit same-sex unions now, since the human population in general is not hindered by a few non-productive unions.
so, while homosexuality may not have been an issue in the past, it is precisely because of natural law that it is now an issue.
Only one Constitutional amendment ever prohibited individuals from doing something: Prohibition. The Constitution should never be used to restrict the rights of individuals. All that will accomplish is to give our children a big headache to deal with when they inevitably repeal our stupid amendment.
The Constitution should only be used as an instrument to permanently enshrine rights, to protect them from the vagaries of public opinion. It should not be used as an instrument to take them away.