8 Comments so far

1. Steve Podraza May 23, 2006 11:46 am

   Presumably a state could still pass a statute recognizing gay marriage and enforcing recognition on the authority of said statute.

2. doinkicarus May 23, 2006 12:03 pm

   said statute would invariably be challenged by right-wing evangelicals on constitutional grounds.

3. Sanjay May 23, 2006 1:29 pm

   A couple points (If it matters: (1)I happen to support that gays should have the same protections as straights, (2) I think civil marriage is a total crock, but of course (3) am married, civilly):

   1) Hardly a “blow to federalism,” the event you describe: in at least one case (Specter) a Senator voted to get the thing out of committee and _does_ oppose the amendment. I agree the thing should’ve gotten out of committee actually.

   2) Yeah, but your interpretation of the statute ain’t universally agreed upon: that’s why Congress initially passed the Defense of Marriage Act (don’t roll your eyes at _me_, boy, I don’t name ‘em.) Contracts have to be honored state-to-state and that’s mandated by the consitution, so in theory one state _can_ force its convention on others. That’s been challenged and is hotly contested: passing DOMA was supposed to quash it but DOMA hasn’t yet passed Constitutional muster and may not. That’s what the amendment is supposed to prevent.

   3) Even if it does pass, it’s hardly a blow to Federalism. Quite the reverse. It allows each state to pass gay marriage independently. The worst you can say is it’s redundant, and probably a decision we’ll regret later. Your follow-up to Podraza is wrong: it couldn’t be challenged on Federal constitutional grounds _because_ of this amendment, only on, maybe, State ones (which this obviously doesn’t affect one way or the other.)

4. doinkicarus May 23, 2006 2:26 pm

   I realize this was just a proposal to put it out of commitee, for further discussion, but as you put it, I do believe it’s at least a step in the wrong direction. Forgive my alarmist headlines…

   The Constitution is the “Supreme Law of the Land” anything to the contrary notwithstanding. It is my understanding that State law and state constitutions can not supercede the constitution. So if the constitution is amended in such a manner as to explicitly prohibit any state from making a law that would require its citizens to do “X,” then any state law requiring said state’s citizens to do “X” would be prima facie unconstitutional.

   No?
   So any State which tries, through legal measures, to enact a provision protecting non-traditional marriages would be in direct violation of the proposed amendment. Imagine for instance, if the State of Michigan decided that it was no longer going to permit a Free Press within its borders? It’s hard to come up with an example that doesn’t sound batshit-crazy. The State of Michigan can’t abridge my right to free speech any more than Congress can - State legislation on the matter is wholly unenforceable.

5. Sanjay May 23, 2006 3:16 pm

   Your hypothetical is correct but your understanding of this Amendment isn’t. Under this amendment, the Alabama state legislature (say) can pass a law legalizing gay marriage or civil unions or what have you. Or they can _explicitly_ amend their constitution to do so. What I’m saying here isn’t particularly disputed btw: those rights remain reserved to the states.

   What they can’t do is a few things: (1) they can’t say that the existence of gay marriage in Massachusetts plus a federal Constitutional requirement that the recognize Massachusetts contracts, forces gay marriage in Alabama, (2) can’t say the same thing except for an in-state requirement, (3) courts can’t say that the federal Constitution in any of its claims about say equality or citizenship mandates gay marriage, and (4) (this is the titchy bit) state courts can’t claim that their state Constitutions force gay marriage by same: that is, right now all state Constitutions are understood not to explicitly _force_ (though not necessarily to condemn) gay marriage.

   Incidentally I think all that is correct, I just don’t want it in an Amendment. For example in MA our courts said, look, the state Constitution forbids discrimination and so it _mandates_ gay marriage (case (4) above). Now, that is prima facie ridiculous to me (who ain’t a lawyer): they need one of two things to be true. Either they need to say the framers of the MA Constitution to have believed that the law was meant to include things like gay marriage — which NOBODY thinks is true — or they need to say, well, by modern standards a “reasonable man” would interpret the Constitutional equality requirement that way. Which argument was shot to hell by polls showing at the time that the people of Massachusetts overwhemingly disagreed. I think the current effort to get courts to play this game is hugely misguided, especially at a time when it was starting to look like individual state legislatures to change the law. I think it was a stupid move. So I don’t really disagree with the amendment but think it’s worthless to put something probably short-lived and possibly redundant in the Constitution: a “kick me” sign in PJ O’Rourke’s terms.

   Incidentally it isn’t breathtakingly obvious to me that federalism works real real well here. There’s an argument for letting states (and in fact counties) set requirements for getting a marriage license, but once married I think it’s tremendously useful to know that you’re still married if you move. There is a certain amount of law (and Constitution) in fact to guarantee, more or less, that: and that’s what DOMA and this Amendment are trying to carve out a specific exception to.

6. Sanjay May 23, 2006 3:33 pm

   Whoops, my bad in part: I’ve been a bit confused by the shit from the 2002 version of the proposed FMA to a new one.

   Looking it over further this Amendment may in fact go further than I had thought. I’m not sure.

7. Steve Podraza May 24, 2006 9:53 am

   Sanjay probably said all or most of this already but it seems to me that the only thing this ammendment, as written, would do is prevent a court, federal or state, from implying a right to same-sex marriage from a state or federal constitution.

   So the US or Massachusetts Supreme Court, for example, could not one day determine that the equal protection clause implies a right to gay marriage. No “legislating from the bench” as they say. Legislating from the legislature remains an option. No doubt one of the strategies of same-sex marriage advocates would be to bypass hostile legislatures and have their respective Supreme Courts infer a right to same-sex marriage from their constitutions, to “find” it burried in some penumbra. This amendment would block this strategy, forcing same-sex marriage advocates to limit their activities to the legislature.

   In short, this is an attempt by the legislature to make sure they, and only they, get to control this issue. What they will do with that control is still open.

8. doinkicarus May 24, 2006 11:55 am

   Along with “implying,” the proposal as written would prohibt “express” provisions. And that’s precisely the problem, Steven.

   Massachusets simply cannot pass a law that says “Gay Marriage is Legal,” such laws do not exist. Things are either legal, because there is no law against them, or they are legal because a previous law against it has been repealed. We do not write laws that enumerate what is “legal.” So arguing that a state could somehow pass legislation that would supercede the constitution is, I think, missing the point.

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