Marriage in the United States shall consist only of the union of a man and a woman. Neither this Constitution, nor the constitution of any State, shall be construed to require that marriage or the legal incidents thereof be conferred upon any union other than the union of a man and a woman.
The Center For American Progress, which is getting a reasonable amount of C-SPAN attention these days, had a panel on the proposed Twenty Eighth Amendment aka the promotion of anti-homosexual bigotry amendment. [As noted, the "Marriage Protection Amendment" doesn't pass the laugh test.] One panel member noted that the provisions respecting "construed" and "legal incidents" are so vague that it would ironically lead to more court involvement, and overall might even lead to MA to deprive heterosexuals marriage rights (equality under its own constitution would require this if they were deprived federally from protecting homosexuals -- either protect both or none).
Another noted that progressives traditionally (one might add except when they did not) supported state action to further their goals -- so federalism a good thing to promote. A third noted that the breadth of the measure underlines that the proponents have a specific goal in mind. The more narrow sorts promoted by some conservative idealists have been rejected -- if you are going to fail, why not do so with a measure that is attractive to your base? Misguided but principled conservatives really are of little value in this election cycle except as misguided cover. You know, "hey, we have people on our side that partly dissent ... so we aren't lockstep fascists or anything!" Sure -- they fear the other side more than the corrupt/mess with whom they basically find themselves stuck. It is almost too bad for them.
Bruce Fein, the Reagan Administration official that is getting some coverage (including respecting the FISA issue) as the anti-BushCo conservative voice, was on the panel along with more usual faces. Fein supported a limited amendment -- requiring state legislatures to handle the issue. This seems to me ridiculous, just somewhat less so. It would in effect remove the first sentence of the amendment -- state legislature by simple legislation could define marriage to include same sex couples. Nonetheless, they (or public conventions/referenda) could not pass state constitutional amendments to do so. The anti-federalist implications are clear, though arguably it can be deemed more democratic. Next up, let us change the Pledge of Allegiance ... since "the republic" part repeatedly throws these people. Our republic, to remind, includes courts (and constitutions) that protect fundamental rights, especially in respect to minorities.
Fein raised the Seventeenth Amendment, which limits states flexibility in deciding how to select senators. But, the Senate is a national institution for which a set rule makes sense. Has been since 1789. Marriage is in a large extent a state matter, where local flexibility makes sense. And, this is in part why Full Faith and Credit Clause has not been applied to out of state marriages. [Relatedly, marriages under doctrine around since the 1880s are not "contracts" for purposes of the Contract Clause.] A more logical rule would be to cement current FFCC policies so that a federal court could not require Kentucky to recognize Massachussetts same sex marriages since this would be a violation of equal protection of the laws. This provision is likely to raise the "why so narrow" issues touched upon below, but at least it would be more honest.
So, though somewhat relevant, the Senate is glaringly different than marriage. I find the comparison woefully lame. The possible rejoinder is that marriage has national implications, but how is it different from any number of other state practices that might result into some sort of national implications? Federalism assumes the value of flexibility and experimentalization, not only in areas that might totally be cabined into one state. For instance, abortion -- some want states to have the power to ban them or at least have a much greater flexibility to regulate. This would result in national implications, since women would choose to travel to the more liberal states for abortions, and so forth. And, to the effect birth rates are involved, ultimately national citizens are as well.
The truth of the matter is that social conservatives are quite often fair weather federalists. Federalism can quite reasonably be a nuanced thing, just one value among many, though admitting the fact throws some people since they tend to use simplistic slogans that imply as much as they say. But, let us note how narrowly the Fein Amendment would have to be. We are not promoting legislative flexibility over a range of issues, thus setting forth a basic principled way of dealing with social problems in general.
No. We are not even doing so over marriage generally -- surely, not in respect to interracial marriages, and most probably respecting any number of possible areas related to marriage from testimonial privilege on forward. Finally, it is doubtful sexual/gender discrimination precedents would be overturned either, including areas related to alimony and so forth. [Quite arguably, this touches upon sexual orientation.]
No, we would narrowly be targeting same sex marriages. Not just marriages -- even civil unions, since they generally protect the legal incidents of marriage without calling them by that name. So, I really do not see how the Vermont policy would stand up to scrutiny. Or, is there some sort of critical mass (75% of the protections of marriage is too much since it amounts to "marriage", but 25% are not)? [This underlines the criticism the amendment is poorly drafted.] But, put this specific amendment aside -- perhaps, we can have Fein-like Amendment with more clarity. Overall, again, it would cover rather limited ground -- concern respecting court enforced public policy covers a lot of ground. Why an amendment that targets but a tiny aspect?
Dislike of same sex relationships. Fein bluntly said as much as to the amendment put forth, but honesty would dictate that a Fein Amendment that covers as narrow of a ground (and it would unless it was purely a thought exercise) very might be open to equal allegations. The last arrow in his bow might be that this area is in some fashion in need of this security, referencing the claim by Bush et. al. that the courts are interfering in this area of so deep concern of the American public, again putting aside that they tend to speak of "marriage," when in fact they are dealing with but a small aspect of the subject. It might be that -- given their druthers -- the amendment would be much more broad, but we need to look at the text of these framers.
Nonetheless, where is the proof to this claim? No, the text of the amendment is telling. The second half is a seemingly narrow matter respecting constitutional analysis. This clause might be compared to the Eleventh Amendment, including the term "construed," which also removes federal jurisdiction from matters deemed intimately related to state power. The courts have construed (natch) an overall constitutional principle that covers state courts as well, so the comparison works in that respect as well. Putting aside the fact that the amendment, surely its current broad application, was ill advised, it at least does not bar suits against states only in one narrow area.
The way the courts stretched the theme of sovereign immunity should also be kept in mind -- the putative amendment can result in questionable court action, especially respecting legal incidents. This surely is the case given some claim same sex couples can still have contractual protections and so forth that are comparable to marriage. But, this will surely be harder given the first half of the amendment, which lets the cat out of the bag -- the promotion, by constitutional means (where horatory statements are generally rare), of social conservative doctrine. Let it be written, let it be done. Sure, Yul Brynner. Dare I even mention the "man and woman" provision complicates the lives of probably a couple million intersex couples? Oh, they come on -- who cares about them?
As noted by one of the participants, the amendment simply promotes anti-constitutional values. Constitutional amendments by definition might to some be seen as constitutional, and some (such as the Fourteenth) did greatly alter the union.* Nonetheless, anti-federalist restriction of liberty in favor of a particular moral sensibility is really approaching the level of unique. The last amendment was rather lame, to be honest, though it does promote a valuable principle that explains why it was proposed in the late 1700s. This one is far beyond lame. It is uniquely so, even among the various possible phraseology out there, but the whole lot of them deserves to be treated like the other ten thousand or so failed amendments. Many of which -- the Flag Amendment not one of them -- a heckuva lot worthy of respect than this one.
So, again, the effort alone is reprehensible, but the problem goes beyond this one measure. It is an overall mind-set that sadly is now guiding those who are running the country. This is the bottom line, the true calamity. Thus, the failure of the amendment is heartening, and in some fashion underlines why we have a "republican" not a purely "democratic" system of government. Nonetheless, the very focus on this (and the flag burning / end of estate tax) measure suggests how far these people have taken us.
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* Of course, the Fourteenth Amendment was a result of revolutionary events as might be said about the income tax, which helped expand the national government by providing means to pay for it. A serious claim, accepted by at least one federal judge, was made that the Prohibition Amendment was unconstitutional since amending "the Constitution" via Article V implied some limitation of altering the basic principles of the document. The Supreme Court did not give this argument serious consideration, but as a basic sentiment of constitutional analysis, it has some bite.
Before you amend in such a way that seriously alters previous practice, have a compelling reason to do so. This might include legislation overall -- to underline a point, constitutional themes are not just secured by the Constitution, "activist" (they want them to be inert?) judges, and the related measures but by legislative acts generally. So, no doing away with the estate tax, aka the Paris Hilton Act. After all, there is a ban on titles of nobility for a reason too.
Not quite as bad as putting an asterisk next to the First and Fourteenth Amendments, but not ideal either.