Readers of my blog will have noticed that I generally avoid blogging on the issue of homosexuality. Yet the possibility that a constitutional amendment barring "gay" "marriage" may become a central issue in the electoral campaign (speak of a Red Herring with a capital R) has caused some people in Belgium to Email me questions.
First of all, what does the proposed amendment, introduced by freshman Senator Marilyn Musgrave (R-CO), really say? From a pro-FMA site:
Marriage in the USA shall consist only of a union between a man and a woman. Neither this constitution nor 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.
According to the page cited, this text will block courts from imposing both homosexual [FB: or polygamous/polyandrous] "marriages" and "civil unions" [Dutch: ruwweg "samenlevingscontracten"] by judicial fiat (e.g. through far-fetched extrapolation of "...nor deny to any person within [US] jurisdiction the equal protection of the laws" [14th Amendment, final clause of Section 1]). However, the legislatures of individual states will have the power to pass lawsrecognizing "civil unions" (but not "marriages") in their own states, as well as to extend state benefits usually associated with marriage to partners in "civil unions". Employee benefits extended by businesses are not affected either way by the amendment.
The amendment is getting flak both from homosexual activists (see e.g. Andrew Sullivan ad nauseam) and from hard social conservatives (for whom even the civil unions are a bridge too far, see e.g. here). Some constitutional law scholars (e.g. Prof. Eugene Volokh; response by Ramesh Ponnuru; reply by Prof. Volokh) fear it may in fact create legal obstacles for state-level "civil unions". Libertarians, of course, propose the radical solution of getting the government out of the marriage business altogether --- a solution I personally could live with :-)
But what is the chance that the proposed amendment will pass? [Americans familiar with their own Constitution may skip this paragraph.] According to Article V of the US Constitution (text; text and analysis in PDF format), an Amendment to the federal Constitution requires (a) a two-thirds majority in both the House of Representatives and the Senate; (b) ratification by the state legislatures of three-quarters of all states. These are steep hurdles to take, and it is safe to say that any Amendment that passes both hurdles can be safely considered the will of the PeopleOTUS.
Furthermore, if such an amendment were later found to be totally out of step with the will of the people at that time, it could be repealed by another Amendment --- this has happened before, with the 18th Amendment (Prohibition ["drooglegging"]) being repealed by the 21st. There have also been cases of amendments that passed both houses but were never ratified: for instance, an early one stipulating a congressman per 50,000 citizens (which would inflate Congress to over 5,000 members with present-day population figures), and another under which anybody who accepted a title of nobility from any nation would forfeit US citizenship.
What about the opposite road? I think it is fairly obvious that a constitutional amendment recognizing the right to homosexual [or for that matter polygamous or polyandrous] "marriage" doesn't have the proverbial snowflake's chance in hell. A constitutional amendment recognizing a right to civil unions might get somewhat more support in Congress, but ratification by three-quarters of all States seems a Mission Impossible. Which is exactly why some are trying to force the issue through the back door (no pun intended).
UPDATE: Prof. Volokh suggests an alternative text omitting "state or federal law".
[to be continued]
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