Why a constitutional amendment to ban same-sex marriage will fail

[Sapphocrat]

I was reading about Colorado's Amendment 2 on the ACLU site...

One state even tried to fence lesbians and gay men out of the process used to pass laws. In 1992 Colorado enacted Amendment 2, which repealed existing state laws and barred future laws protecting lesbians, gay men and bisexuals from discrimination. The U. S. Supreme Court struck it down in the landmark 1996 Romer v. Evans decision.

...and what leapt off the page at me was this:

We must conclude that Amendment 2 classifies homosexuals not to further a proper legislative end but to make them unequal to everyone else. This Colorado cannot do. A State cannot so deem a class of persons a stranger to its laws.

-- Justice Anthony Kennedy
Majority Opinion in Romer v. Evans I

I'm no lawyer, but it looks to me like a precedent has been set, and I imagine that Romer v. Evans I would be to a constitutional marriage ban what Lawrence v. Texas was to sodomy laws.

Am I dreaming here? If it seems so obvious to me that a ban could easily be defeated as one which "deem(s) a class of persons a stranger to its laws," would there be anything to prevent using the SCOTUS repeal of Amendment 2 to invalidate a similar-in-spirit constitutional amendment?

You know that if a same-sex marriage ban were to actually get ratified (I can guess the number of states that would either reject it outright, or whose courts would strike down any ratification), it's going to be challenged, and it will eventually end up in front of SCOTUS (which, especially after Lawrence v. Texas, would be hard-pressed to refuse to hear the case).

Knowing this, can anyone tell me why the Right is so desperately anxious to push this ban through? They stand less of a chance of winning than we do of losing.

Disregard the current political climate; it seems to have little bearing on recent SCOTUS decisions such as Lawrence v. Texas. (And if the political climate does have any impact, well, the times they are a-changin'.)

And the Right has got to know that if they lose, they will have essentially opened the door wide to same-sex marriage.

So what trick do they have up their collective sleeve? Why -- and how -- do they think they will actually win?

[Sephirstein]

1. Huh?

Can something be above the constitution?

[Dookus]

2. well...

court precedent has NOTHING to do with constitutional amendments. Amendments are made to GET AROUND court precedent.

A constitutional amendment cannot be unconstitutional.

[Sapphocrat]

4. Okay, then refresh my memory...

...and excuse my extreme embarrassment at confusing SCOTUS' ability to repeal state laws with its inability to touch constitutional amendments...

Then the only way to repeal an amendment is through another amendment (as with the whichever-one-it-was that repealed the 18th/Prohibition)? There's no other way to touch it (i.e., through the courts)?

Forgive me -- I am very rusty at this stuff. (And I don't remember any "Schoolhouse Rock" songs about this one!)

[Dookus]

10. lol...

yes, that is correct. Only a new amendment can "undo" a previous amendment. The courts can ONLY decide whether a law contradicts the constitution. Once an amendment passes, it becomes part of the constitution.

[eyesroll]

12. Ever see that Simpsons episode?

They did a pretty spot-on "Schoolhouse Rock" parody -- they even used one of the singers from the originals.

Amendment (singing):I'm an amendment-to-be, Yes an amendment-to-be,
And I'm hoping that they'll ratify me.
There's a lot of flag-burners, Who have got too much freedom.
I want to make it legal for policemen to beat'em.
Cause there's limits to our liberties,
At least I hope and pray that there are,
Cause those liberal freaks go too far.

(Spoken)
Kid: But why can't we just make a law against flag-burning?

Amendment: Because that law would be unconstitutional. But if we changed the Constitution...

Kid: Then we could make all sorts of crazy laws!

Amendment: Now you're catching on!

The Simpsons were oddly prophetic, weren't they?

[onebigbadwulf]

3. Prophecy

This is what I foresee in my infinite wisdom.

Two guys get married in Hawaii. Live in Alabama. One guy gets sick. Is dying of cancer, and the hospital people wont let him see his husband as he is dying. His will bequeathing all his items to his husband is then considered void and so forth. The guy sues Alabama, overturned, goes to the supreme court, and 5 years from now, the SUPREME COURT, not congress, deems marriage legal between any two consenting adults.

[alwynsw]

6. The aprtner words his/her last will VERY carefully

Get a decent lawyer and the disposition of goods becomes a simple matter.

On the hospital visitation: ALL GAY COUPLES! COMPLETE A MEDICAL POWER OF ATTORNEY NOW! That way, you designate who makes your healthcare decisions should you become unable to do so. If you don't and an accident or illness renders you unable to make your own healthcare decisions, your LEGAL next-of-kin gets the job, regardless of whom you would have chosen. Keep a copy with you at all times, or use an electronic storage service (they're rare, but relatively cheap) so that your Advance Directives can be downloaded by or faxed to any hospital.

IF YOU DON'T HAVE IT IN YOUR POSSESSION AT THE TIME OF NEED, YOU DON'T HAVE ONE AT ALL IN MOST STATES!!!!

[Sapphocrat]

8. That would be great if...

...they could get married in Hawaii or any other state (which they can't).

But I'm seeing what the other posters are saying (it may take me a moment, but I get it): that the whole point of a constitutional amendment is to usurp any such decision by SCOTUS.

It would, however, be interesting if DoMA were overturned, Hawaii or Vermont or Massachusetts would indeed grant marriage to same-sex couples, and some couple did win such a decision from SCOTUS -- before any constitutional amendment were ratified. It would probably derail the entire effort, because what would happen to all those (now-legal) same-sex marriages? Invalidation? Expiration?

Which (bear with me while I think out loud here) answers one of my questions:

The Right is anxious to push a constitutional ban through as quickly as possible, before any such scenario can take place.

So, I guess the answer is to repeal DoMA, and then get marriage equality in at least one state... before they can get the ban ratified.

(No, folks, I'm not on a same-sex marriage campaign here -- this is strictly academic discussion. As much as I want to get married, I firmly believe this issue must remain on the back burner until we have a reasonable Congress in place.)

[aquart]

5. Sweetie, it's flag burning.

A lot of blather to get people roused, give the appearance of great action in the cause of the people, to cover that NOTHING is being done FOR the people, and a great deal is being done AGAINST them.

It's smoke, honey. The fire is burning down whole other parts of the constitution.

[A_Tra]

7. Once

an ammendment is ratified it is the Constution, and you cant rule the Constitution unconstitutional...

[JackSwift]

9. It's chumming the shark infested waters

to satisfy the hard core haters that are the Republican party's base.

[Booberdawg]

11. It's highly unlikely a Constitutional Amendment would ever pass

Not only would it have to pass in Congress but it would have to be ratified by, I believe, at least 2/3 of the States. That's highly unlikely.

I think it's just noise for show from the usual right wing shrills as others here have pointed out.

[ScreamingMeemie]

13. Except I worry because lots of states right now (including mine)

have proposals on the table to ban same sex marriages. Very smelly, because Michigan law already recognizes marriage as only a union between man and woman. So why beat a dead horse? This is where I get out my tinfoil hat. It seems like what starts out as a trickle soon becomes a river. I fear they are trying to lay the groundwork in these states. I hope not, but I can't think of any other reason to put a law like this on the books in Michigan or elsewhere. It stinks in my opinion.

[Mel]

15. your right about it stinking

I don't know enough from a law sense to give advice.
From my point of view this amendment idea of marriage only being between a man and a woman goes against the grain of what our constitution is about.
When the idea to add an amendment involves 'taking away rights' from a group of people something is beyond smelly it's down right rotten.

[msmcghee]

14. To cement their (slipping) hold on the relgious right. n/t

[Eloriel]

16. The reason the right is doing this

is that it's a wedge issue for the left. Period. They don't care if it passes or fails -- in fact, they'd probably prefer it NOT pass. That would rob them of its future use.

Eloriel

[beyurslf]

17. Marriage versus Civil Union

If they ban "marriage" what would stop a state form Civil Unions like Vermont has? They give the same rights/responsibilities as marriage they just don't use that word.
People just get freaked out when you say "gay marriage" because they pick two men kissing in front of their preacher at church.