David Rodeback's Blog

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Friday, June 2, 2006
The Marriage Protection Amendment, Part I

The first of at least three articles on the proposed Marriage Protection Amendment looks at the text of the proposed amendment, its apparent intent, and what may happen on Capitol Hill after the Senate debate.

On Monday the United States Senate is scheduled to debate Senate Joint Resolution 1 (S.J.Res. 1), which, if passed by two-thirds of each house, will propose that the United States Constitution be amended to include the "Marriage Protection Amendment." This is the proposed wording:

SECTION 1. This article may be cited as the 'Marriage Protection Amendment'.

SECTION 2. 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.

If it passes the Senate with a two-thirds majority (67 of 100), it will be sent to the House of Representatives. If the House passes it by a two-thirds majority (290 of 435), the amendment is proposed to the states for ratification. Three-fourths of the states' legislatures (38 of 50) would then have to ratify the amendment for it to be added to the Constitution.

The first thing to note is that the amendment is a long way from being ratified. I doubt it will pass the Senate with the required super-majority. I'm not sure the majority leadership expects it to pass, but if it goes to a vote -- at least a recorded vote -- it's a no-lose situation for the Republican majority. Either it passes or they get a lot of Democrats on the record opposing the traditional definition of marriage. Either outcome helps the Republicans in November.

My reading of the proposed amendment is that the first sentence of Section 2 would prohibit or override any broader or different definition of marriage (gay, polygamous, or otherwise), whether it originated as ordinary Congressional legislation, state legislation, state referendum, state court decision, or federal court decision. Only an amendment can change an amendment. However, I have to confess some uncertainty as to how bound the US Supreme Court would feel by it. They seem to be able to ignore Constitutional text when they find it convenient.

The second, longer sentence of Section 2 would presumably avoid constitutional challenges based on the "equal protection clause" of the 14th Amendment, which reads, "nor shall any State . . . deny to any person within its jurisdiction the equal protection of the laws," or the "full faith and credit clause," which is Article IV, Section 1:

Full Faith and Credit shall be given in each State to the public Acts, Records, and judicial Proceedings of every other State. And the Congress may by general Laws prescribe the Manner in which such Acts, Records and Proceedings shall be proved, and the Effect thereof.

Marriages are traditionally regarded as one of the public acts which, if performed in one state, must be valid in the other states. This explicitly excludes that requirement, for marriages which do not meet the amendment's definition.

I don't see how this amendment would prevent states or businesses from recognizing some sort of domestic partnership, so long as it is neither called marriage nor given the full legal force of marriage. But I'm rather old fashioned in some ways; I tend to thing that a text may have a clear and stable meaning. A lot of judges and others do not feel so constrained.

Parts II and III will walk through some of the reasons I've heard or read for supporting or opposing the proposed amendment. Part IV will identify and explain my own view. All are forthcoming as soon as life beyond the blog permits.

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