Moms View Message Board: General Discussion: Politics/Constitution question
Ginny, this might be right up your alley... I don't quite understand how this works, and I'm hoping the moms here might be able to tell me.
States such as my own passed a law yesterday to change their state consitiutions to ban gay marriage. Now that Obama has won, and the Democrats are in control, is it possible for the US constitution to be changed with an amendment ensuring the rights of all citizens to be married? This is of course theoretical, I am not asking whether it WILL pass, just if it COULD. If such an amendment was made, would it nullify the state amendments? I mean, I understand the way Roe V Wade works, in the simplest terms the Supreme Court ruled it's up to the states, right? But that's different from an actual constitutional amendment, so is it possible to actually pass amendments on these issues that prohibit states from banning them?
An amendment requires ratification by 3/4 of the States' legislatures (Article V). And yeah, federal law and Constitutional amendments generally override State law. At least that's what I understand it to be.
The biggest obstacle to same-sex marriage isn't State constitutions, it's the Defense of Marriage Act. That federal law states clearly that same-sex marriages cannot be recognized across state lines.
Some thoughts ...
It is possible to bring an amendment to the U.S. Constitution - on marriage rights or almost anything else. It's just not likely - certainly on marriage rights. I think it is going to take another three full generations (50 to 60 years) before people stop thinking that there should be laws that discriminate against adult gender identity or that same gender couples should not have the same legal rights as opposite gender couples.
And please don't tell me that "domestic partnership" laws cover all the legal issues, because they don't. In Pennsylvania, for example, a married couple can own a house "by the entireties", which means that if one person dies, the other inherits the house without inheritance tax, but if you are not married, the surviving partner pays inheritance tax on the deceased partner's half. And the same rules apply to other property - bank accounts, investments, etc. - that a married couple holds jointly. A couple can live together for 40 years, sharing all income and expenses, but if they are not married, neither is eligible for Social Security benefits from the partner's account. Even in states with domestic partnership laws, hospitals will refuse "spousal" visiting privileges to an unmarried partner but grant those privileges to a parent or sibling, unless the partners filled out various legal documents. Domestic partnership laws vary from state to state, and there is no federal recognition of that status. In New Jersey, a state which has a very good domestic partnership law, some nationwide companies like UPS refused to treat a domestic partner like a spouse in terms of eligibility for health insurance coverage, saying that under the federal ERISA laws they were not required to. Plus, as Scott pointed out, a same-gender couple that is married legally in, say, Massachusetts could not move to another state without losing the rights that they had as a legally recognized couple in Massachusetts.
About amending the U. S. Constitution, you might (or might not) remember the Equal Rights Amendment - an Amendment which said, simply, "Equality of rights under the law shall not be denied or abridged by the United States or by any state on account of sex." Not exactly what we might consider controversial today, but when the ERA was voted on by Congress in 1972, Congress set a 7 year time limit for ratification by 3/4 of the states and in the end, it fell 3 states short. I would imagine that if it were proposed now, 30 years later, it would probably be ratified in (comparatively speaking) fairly short order.
Constitutional amendments are very serious business federally, which is why the Constitution requires ratification by 3/4 of the states. And I think amending the federal constitution should be serious business and not done easily. I also think it should be a lot more difficult than it is in some states to amend their constitutions, but that's my opinion.
My DH asked the same question today. Thanks guys!
Thanks guys! I actually had called my uncle, who happens to be a former politician, to get some clarification after posting this. He brought up an interesting argument against gay marriage, which Ginny just inadvertently countered for me. His position on it was you can make anyone a power of attorney and create a living will, giving them rights to make decisions for you, so what are gay couples missing out on? I was not aware of the home ownership thing, although I did point out health benefits. Is gay marriage a separate thing from a civil union, by legal definition? Because here in FL they have banned the recognition of all civil unions, which means even hetero couples in a common law relationship do not have rights. So, is it more likely we could amend the US constitution to provide recognition of all civil unions or domestic partnerships? I don't understand how all men are created equal, but we still cannot provide rights to all citizens in this way. It just seems to me that these state bans would be unconstitutional. My uncle did say it's likely the props in states like CA and FL will be challenged, and sent to the Supreme Court, so I assume this is where the possibility of new appointments under Obama can come into signifigant play. It just seems insane to me that we have this ongoing battle on gay rights, and I cannot understand why people feel as though their rights are in jeopardy if we simply provide personal rights to all couples. Then I think about abortion, and that issue is really beating a dead horse, yet Roe v Wade could be overturned. It's just crazy, and I wish the Constitution would be amended so we didn't have to keep going in circles.
I started to write a lengthy response about some of the legal differences between domestic partnerships and marriage, and that in some European countries all persons who wish to marry must have a civil ceremony and a religious ceremony is option, whereas in the U.S. when a religious ceremony is performed it is also a civil ceremony. But I decided that discussion should be held on the debate board, if anyone wants to discuss it.
I think I will post that there later today, or perhaps we can discuss off the boards, since there is already so much debating here. I'm quite interested in the way we address partnerships and the effect it has on different types of relationships.