Ted Cruz wants an amendment to the US Constitution:
I know this will not happen, so this isn’t about what would and wouldn’t happen. And I know that it’s hard to say given the political winds that would have to blow to make the amendment possible. So this is just an exercise of imagination.
If it did happen, what then? Seems like Loving v. Virginia goes bye bye. Seems like Utah no longer has to ban polygamy. And, obviously, those states that don’t like gays can embrace their bigotry. But what states would do what?
I’m under the impression (due to my research by faithfully watching 5 seasons of “Sister Wives”) that the actual LDS is against polygamy and polygamist families are all broken away from the church. So assuming that Utah is run by “real” LDS politicians, Utah will continue to legally ban polygamy.
Regarding marriages between gay people…I dunno. Aren’t the states already turning towards lifting bans on their own? Do they need help from the federal government?
I doubt that any state brings back anti-miscegenation laws. Tons of them would immediately revert to have SSM not recognized, as they will still have laws in their constitution that now will not be at odds with the US Constitution. I don’t think any action would have to be taken. The laws that are still on the books would simply go back into effect. But I am not a lawyer.
I’m not sure we’d see any state actively re-create racial marriage laws, but some states might still have them on the books. And you could see some Joe Arpaio figure in Mississippi or Louisiana enforcing them.
I wonder how many states have their own equal protection clauses informed by federal jurisprudence. That would probably head off a lot of monkey business.
Has anyone seen the actual text of this proposed amendment?
Cruz could try for three different levels. The most extreme would be to try to enact a national ban on same-sex marriages. The lowest level would be to allow states to ban same-sex marriages. The middle level would be to match the state level bans with a federal level refusal to recognize same-sex marriages from states that permit them.
The text of the proposed amendment will also have to address whether it’s specifically limited to just allowing legislation on same-sex marriage or whether it’s written broadly enough to allow states to legislate on other types of marriage, like interracial marriages or polygamous marriages.
Cruz’s proposal as stated is incoherent. The courts are the courts, they interpret the law. You cannot have a Constitutional amendment that says “the courts can’t interpret the law.” Marriage is already a matter of state law. It is inescapable that state laws shall be reviewed by courts.
What could be done intheory is to pass a Constitutional amendment that specifically says what is ir isn’t a marriage - what Cruz would be going for, of course, is something worded like “Amendment XXVIII: For all legal purposes, the recognition of marriage shall be limited to marriages between one man and one woman.” It’d be evil, but it would be legally clear and enforceable. Republicans have already introduced such amendments, though none have gone anywhere, at least eight or nine times in the last couple of decades.
Cruz’s proposal as stated is incoherent. The courts are the courts, they interpret the law. You cannot have a Constitutional amendment that says “the courts can’t interpret the law.” Marriage is already a matter of state law. It is inescapable that state laws shall be reviewed by courts.
What could be done intheory is to pass a Constitutional amendment that specifically says what is ir isn’t a marriage - what Cruz would be going for, of course, is something worded like “Amendment XXVIII: For all legal purposes, the recognition of marriage shall be limited to marriages between one man and one woman.” It’d be evil, but it would be legally clear and enforceable.
I think it would be possible to write an amendment that specifically unincorporates same-sex marriage rights from 14th Amendment protection and declares it’s a state level issue.
Such an amendment would still allow states that wanted same-sex marriages to enact them. But it would prohibit courts from declaring that marriage was a right that everyone was entitled to under the equal protection clause. It would essentially put same-sex marriage back at the same level that interracial marriage was at prior to Loving - legal in some states and illegal in others.
Congress makes an exception removing same-sex marriage from the appellate jurisdiction of the Supreme Court. The states may do whatever they like.
Yes, the Supreme Court would rule such regulations un-Constitutional. They may properly be ignored. That would lead to a Constitutional crisis, which is a Bad Thing, so it won’t happen until an issue important enough to risk such a crisis comes along.
Of course it is subject to exactly the same conflict as exists now, where those who feel “The Constitution says whatever I want” are aggrieved by those who say “The Constitution says what it says and can’t be changed except by Amendment”, but that can’t be helped.
Except that the actual controversy is the application of the 14th Amendment equal protection clause, and Art. III, Sec. 2, clause one says “The judicial Power shall extend to all Cases, in Law and Equity, arising under this Constitution.”
Congress would have to pass a law saying the courts have no power to decide any case about constitutional rights, and that would be an even bigger constitutional crisis (and would not play well with either side–if the 14th is no longer subject to judicial review, then the 2nd isn’t either).
Article III, Section 2, Clause one contains no language about “except for cases arising under this Constitution that mention any of the following words: marriage, same-sex, …”
The “exceptions and regulations” clause applies to cases in which the federal courts have appellate jurisdiction. The second paragraph reads in its entirety:
In cases where a State is a party (such as Bishop v. Oklahoma), the federal courts have original jurisdiction, and the “exceptions and regulations” clause doesn’t apply.
I think I’m a bit confused* – particularly on this legal question.
I thought Federal oversight kicked in whenever people crossed state lines to do something, particularly with money involved. Wasn’t that the point of unifying as a nation after the British Loyalists were sent back across the pond?
So if I’m buying stuff in my home-state I pay sales taxes on it but if I purchase something from another state–even a neighboring state, I don’t pay sales tax on it because the federal government said, “That’s not allowed.”
So even if my state bans SSM, if I go marry my SS SO in Hawaii and come home, then we’re crossing state lines to do our business and somehow the Federal government has to get involved on recognition, interstate licensing, and all that stuff. How can we feasibly say, “The Federal Goverment Can’t get involved.” It has to get involved; it’s job is to iron out inter-state disputes.
Am I missing parts of the picture?
–G!
*Yes, I know, I’m generally a bit confused anyway.:o
But what will essentially happen is that states that don’t recognize same-sex marriage - let’s say Utah for example - won’t have to recognize a same-sex marriage from a state that does allow it - let’s say Vermont.
This will lead to some apparent paradoxes. You will be married in Vermont but not married in Utah. So what happens if you marry a same-sex spouse in Vermont, travel to Utah, and marry somebody of the opposite gender? According to Vermont law you’re now married to two people but according to Utah law you’re only married to one.
And what marriages will the federal government recognize? Will it recognize same-sex marriages that were performed in states where same-sex marriages are legal? What happens if you get married to your same-sex spouse in Vermont and then move to Utah. Will the federal government still considered you to be married even though your marriage couldn’t have been performed in Utah?
Congress couldn’t enact a law specifically removing same-sex marriage from the Court’s jurisdiction. The whole point of the Fourteenth Amendment is that everyone has the same rights. So either everyone has the right or nobody has it. Any attempt to say that straight people have a constitutional right to get married but gay people do not would be as unconstitutional as a law saying white people have the right to own firearms but black people do not - you can’t say that the Second Amendment only covers some people. The most Congress could say is that nobody has a constitutional right to get married and that only state governments can create the right to marry.
And that’s not going to fly either. There’s already an existing body of law saying that marriage is one of the rights protected by the 14th Amendment. So Congress can’t just enact a law saying marriage isn’t covered. If they tried, the Supreme Court would declare the law unconstitutional as they have when past laws tried to tell the Court it couldn’t rule on an issue.
Once the Supreme Court declares an issue falls under its purview, the only thing that can overrule that decision is a constitutional amendment.
Utah could legalize polygamy tomorrow without running into any problems with the US constitution; Congress only has the power to ban polygamy in US territories. Of course this would trigger a waive a lawsuits about whether the federal government (and/or other states) must recognize polygamous marriages. Also as it stands now any law that allows a man to have multiple wives without also allowing a woman to have multiple husbands is probably unconstitutional.
No, Vermont doesn’t recognize polygamy so you’re still only married to one person; it’s just a different person that you’re married to in Utah. And what happens if Cruz’s hypothetical amendment doesn’t also specify whether the federal government uses the place of celebration or place of residence when determining which marriages to recognize? If the former is used since the Vermont marriage a occurred first even if you live in Utah you’d have a different spouse under federal law than you would under state law. But if residence is used what happens if your other spouse still lives in Vermont?
Nitpick: The Supreme Court has original jurisdiction in those cases and the “exceptions and regulations” clause cover the Supreme Court’s appellate jurisdiction.
(emphasis added) Congress can abolish all federal courts, except the Supreme Court, tomorrow. If it chose to establish inferior courts (note the may in Art 3, Sec 1), these inferior courts could be ones of limited jurisdiction (as admiralty courts are). Congress could establish a special inferior court with jurisdiction to hear all constitutional claims except those related to same sex marriage*, and then likewise deny the Supreme Court appellate jurisdiction to hear any case related to same sex marriage* coming from a state court.
Judicial review wasn’t considered settled law until 1803, even with this seemingly plain text.
*or abortion, or gun control, or pornography, or campaign finance
I didn’t suggest it was a constitutional problem. But Utah got rid of polygamy because it was causing legal issues. Constitutional amendments protect from all congressional laws, not just constitutional ones.
Vermont doesn’t recognize legal polygamy. But Vermont recognizes the possibility of somebody illegally getting married a second time while their first marriage still exists. They have a law against it: Title 13, Section 206.