Well, one thing for sure. If the constitutional amendment is passed, and hopefully in the process of getting it passed, there will be a large debate about the issue of individual rights, sexual identity and the institution of marriage. Perhaps that would be a good thing.
But the notion of civil unions is bullshit. If you look at the language of what is trying to be passed, even civil unions would be suspect and probably outlawed.
Again, the Economist has done a nice job on this, rather incisive on the consitutional issues.
http://www.economist.com/world/na/PrinterFriendly.cfm?Story_ID=2460765
Gay marriage
New fuel for the culture wars
Feb 26th 2004 | WASHINGTON, DC
From The Economist print edition
The proposed constitutional ban on gay marriage adds thorny legal and political questions to a troublesome moral debate
AT A speech to the Republican Governors' Association on February 23rd, George Bush argued that voters face a stark choice between “two visions of government”: one (his) that encourages individual freedom, the other (the Democrats') that “takes your money and makes your choices”. Twelve hours later, he presented Americans with an equally stark question: do you want a constitutional ban on gay marriage? By any measure, this would take away gay Americans' choice. By supporting the proposed ban, President Bush has re-ignited the culture wars, given a new, possibly nastier character to the presidential race and committed America to a long, maybe unresolvable, debate about fundamental mores.
It is ironic that most of the constitutional amendments have been about expanding the franchise of rights rather than limiting it - the exception being prohibition.
Why does Bush contradict himself? Well there's more and it makes more sense when you consider the constitutional issues-
America's culture wars have the virtue of ventilating profound questions of personal behaviour and responsibility. Their drawback is that they are sometimes poisoned by majoritarian actions. So it may be this time. The underlying issue of gay marriage turns on basic attitudes towards sexuality, on the extent to which marriage should be buttressed by law, and on whether gay marriage would undermine the institution itself. But the particular form in which the issue is now being presented—as a proposed amendment to the federal constitution—raises questions about who should make decisions like this and what is the proper role of the state and federal governments.
Supporters of a constitutional ban want to stop gay marriages everywhere, of course. But in practice they focus on a slightly different issue: how to stop gay marriage spreading from state to state through a clause in the constitution that says “full faith and credit shall be given in each state to the public acts, records and judicial proceedings of every other state.” The fear is that, as the president put it, “some activist judges and local officials” will permit gay marriage in one place. Gays from all over the country will then rush to marry, return home and sue in their home state's courts to have their marriage contract recognised. In support of this view, proponents of the ban point out that, in practice, states always recognise each other's marriage laws. Gay marriage would be no exception.
ANd therein lies the problem. This becomes an issue of constitutional rights. One could argue against this before both state or federal constitution. If you lose in federal you could still win in state court because states are empowered to give more rights than the feds, but not less.
However, if you win in federal, the states can't deny you federally protected rights. So the feds would have the power to define the right of gays to marry. While gays are not considered a "subject classification" entitled to greater protection under The Equal Protection Clause, argueing this case based on gender discrimination- why should a man and a woman have more right to marry than two men- says that you are making a patently gender based classification. That gets you under the Gender classification for Equal Protection.
They point out that the federal government has twice stepped in to strike down marriage laws deemed acceptable in one state but not elsewhere. In both cases, this involved polygamy among Mormons, first when Lincoln banned bigamy in 1862 (the Morrill Anti-Bigamy Act) and again in 1890 when the federal government insisted Utah outlaw polygamy as a condition of becoming a state. If the feds can ban polygamy, why not gay marriage too?
ANd that opens up an interesting issue. Why shouldn't a man be able to marry multiple women? Why should a woman be denied multiple spouses- I see more of a decline in western civilization there- sorry to the Muslim readers, but realy, why in the hell would you want 4 wives? One is headache enough!
Regardless this is an issue that the feds have stepped into before, they will again.
Lastly, they argue, a constitutional ban would stop only marriage among homosexuals, not civil unions. States could still, they claim, write their own laws granting gays some legal rights short of marriage, as Vermont has done.
The civil union stuff is bullshit. See below-
Opponents of the ban reject these arguments one by one. Most important, they say, proponents are factually and legally wrong about the constitution's “full faith and credit” clause. It has long been established in law that if an issue comes within the purview of states, and if states have their own public policy on that issue, then they do not have to recognise another state's law. This exception is essential to the operation of the federal system itself, which would otherwise be rendered meaningless.
Indeed. But that still opens the door to making this a federal issue.
If the Court recognizes the right to gay marriage as a denial under gender or even gives gays greater power to sue under equal protection by labelling them a suspect class- then we have some interesting issue.
Now imagine a democratic president, who nominates democratic justices to replace those conservatives that are planning to retire soon. We might see that happen.
At which point this becomes a federal issue and the court could override the states.
There is no doubt that marriage is a matter for the states, not the federal government. It has been so for centuries. There is no doubt that many states have their own policy, since 38 have passed “defence of marriage acts” defining marriage as the union of a man and woman. It is true, opponents concede, that states have always recognised each other's marriage laws. But that was because there was consensus. Now that the consensus is fraying, Texas (say) will not be required to recognise a gay marriage made in Massachusetts. The result will be messy, but that is the price of federalism.
Indeed, this is the also part of the problem of dual sovereignty. Incidently, for the EU this is worth paying attention too. These types of issues will accrue within any system in which there are
heirarchical distinctions of soveriegn power.
Moreover, opponents of a ban point out, the “full faith and credit” clause gives Congress a role in deciding “the manner in which such acts, records and proceedings shall be provided”. Congress made clear its view by passing, in 1996, its own Defence of Marriage Act. In sum, opponents say, the constitutional defences against extending gay marriage by judicial activism are strong.
Indeed, but making a constitutional amendment makes the issue one of status quo. It is easier to make a wall than to break it down, so to speak. if the constitutional amendment is passed the status quo is established. It will be upon those advocating gay marriage (a small if vocal minority) to contest the issue. I seriously doubt they could win it.
What about civil unions?
Lastly, they claim, proponents of a constitutional ban are plain wrong—or lying—when they say their amendment would permit civil unions. As it stands, the proposal before Congress would prevent “marital status or the legal incidents thereof [being] conferred upon unmarried couples or groups”. If the phrase “legal incidents thereof” means anything, it must refer to civil unions. These would be banned.
And there lies the bullshit. ALso why so many gays are actively trying to marry before the feds or the states close the door.
Could such an amendment pass? Since the Bill of Rights, there have been only 16 amendments in 200 years. Most guarantee or extend the operation of democracy (such as women's suffrage), rather than defend social norms (such as Prohibition). Any amendment requires the approval of three-quarters of the states, plus a two-thirds majority in both houses of Congress.
And this is an election year. So yes, it's very important who wins- probably not just the white house but the congress as well.
This looks hard, but is not out of the question. Three-quarters of the states have passed laws banning gay marriage, though some might vote against an amendment on states'-rights grounds. The decisive factor, though, will be public opinion.
Or not. Remember GB got into office without the popular vote and with a bare electoral vote. Once in office you have the power to change the national agenda.
Remember this was the guy who said he'd be a compassionate conservative, no state building policies, international cooperation, respect state's rights......
Right.
It is often said that Americans disapprove of gay marriage but support civil unions. Not so. Gay marriage is more unpopular than unions (about 60% dislike the former), but, depending on how the question is asked, a small majority disapproves of civil unions too. That suggests that public pressure on legislators could be strong.
ANd here is the rub. More people are generally in favor of gay rights than before, but it's the institution of marriage where the battle ground is.
But that's natural too. Remember these are moral battles that usually are fought over the most valuable ground. Here the ground is the institution of marriage.
But opinion is fluid. It is sensitive to news. Support for an amendment rose when the Supreme Court struck down Texas's sodomy law last year. It shifts depending on how the debate is framed: the more you talk about equal rights under the law, the greater the support for civil unions. And there is a yawning generation gap: 55% of 18-29-year-olds support gay marriage, but only 21% of those over 65.
ANd that is another issue. The baby boomers are gettin golder, and while they are a huge, and often conservative group, the next generation has it's own opinions.
Happily they will die out over time, but in the meantime they have an agenda of maintaining the status quo that they are so proud to have established.
It is the younger generation- you- that will decide how far they go to doing that.
Thus there is also the issue of who's america you will live in. That of the last generation or that of the next.
But honestly, I find it frightening how often this generation is willing to roll back virtually every social progressive policy of the last 30 years. There are a lot of young republicans.
Mr Bush may therefore be taking a bigger political gamble than is apparent on the surface. Democrats complain that by supporting a constitutional ban he is seeking a “wedge issue” for the election (something that splits Democrats but unites Republicans). And it is true that Republican-voting evangelicals strongly support a ban, and may well turn out in even greater numbers as a result. But Republicans too are split on the ban. Libertarians dislike legislating on sexual behaviour. Federalists deplore the proposed overriding of a core competence of states. Around 1m gays voted Republican in 2000.
In the end this will favor the republicans. Personally I think the democrats should come out and say. "Fuck ya, I'm for gay marriage, why not?" To me that is a matter of integrity if a act of political suicide.
Even if Libertarians go against this, most Libertarians are fairly conservative and in the end they will vote as a matter of tax policy.
Evengelical Christians will support Republicans.
What about Democratic constituencies- on this issues- Catholics, Blacks, Latinos, will go conservative.
And what about the real issues? The economy, the war in Iraq? This president's spending policies?
Politics as guerrilla warfare and by distraction.
So there are costs as well as benefits for the president. And those costs may spread to the country as a whole. In Roe v Wade in 1973, the Supreme Court imposed a uniform law on a country divided and in flux on abortion. The issue still splits the nation. A constitutional amendment would stop state experimentation and impose a national norm on a country divided and in flux about gay marriage. Debate could fester for years.
Actually it would be an interesting question of what would happen if the federal constitution limited a freedom and a state allowed it.
Sorry folks that I have been spending a lot of time on this issue here. I have a few gay friends and this bothers me. It seems fundamental to me that we, as a democracy, have to get past the day when there exists second class citizens.
