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The geography of a failed amendment

Submitted by Simon on Tue, 06/20/2006 - 9:21pm

This will be my first formal post here at Stubborn Facts; I had actually intended to open my batting here with a rather different post, but I wanted to talk about this issue before it entirely fades from memory. Nor do I regard this post as being as complete as I'd like, but deadlines are as deadlines do, and if nothing else, it does start a conversation (and, in any event, I think that the most interesting component of this post is the analysis presented in Part I, which is complete, not my own (incomplete) views, presented in parts II and III.

Three weeks ago, the United States Senate rejected the latest attempt to amend the Constitution of the United States to (news report | vote tally | legislative text). Part of the difficulty that the Federal Marriage Amendment (“FMA”)1 faced was that it managed to draw the ire even of federalists, some of whom support banning gay marriage (Senator McCain, for example, who supports the passage of a ban in his native state, but has twice now voted against creating a Federal amendment), and some of whom (such as myself) who really don't care that much about the underlying issue, but who have strong views on Federalism.

I intend to talk more about my views on Federalism in posts in the next few weeks, but today, I want to focus on three points about the FMA. First, I want to explode (or at least, mortally wound) the basic premise of the amendment's proponents that “if we could only get it through the Congress, the states would easily ratify it.” Second, I want to talk briefly about my own objections and the reasoning behind those objections, and lastly, I want to propose (although not necessarily endorse) a compromise that would deal with my objections.

I. The problem of the practical

Justice Scalia has noted that “you should always begin with principle,” but pace Our Hero, I think it is reasonable for our purposes today to begin with practicality. In my view, the United States Senate has better things to be spending its time on than a debate over an amendment which will be lucky to be DOA. When I say that the debate over the FMA is pointless, I do not mean that it is pointless because the GOP cannot capture the 59 votes2 that it needs in the House to get this amendment out to the States, although that is certainly also true. Rather, as I will show, it is extremely dubious that the amendment could get anywhere near ratification once submitted to the states.

Let us briefly survey the mountain. Aware that the needs of society might outgrow even the broad language of the Constitution,3 and very much mindful of the failings of the Articles of Confederation in this regard, the Framers bequeathed us a means to change the framework of our government. Article V permits the Congress to propose Constitutional amendments, which “shall be valid to all Intents and Purposes, as Part of this Constitution, when ratified by the Legislatures of three fourths of the several States.” With fifty states, thirty-eight states are required to ratify an amendment, meaning that – ironically enough – rejection by any thirteen will suffice to stymie an amendment such as the FMA (the antifederalists need not have worried!). In my view, the FMA faces an impossible task: the votes simply are not there to ratify it.

The FMA's proponents seem to be under the impression that public disapprobation of homosexual marriage is in itself sufficient to ensure ratification. For example, last week, arguing this point at the conservative-inclined blog ConfirmThem, my interlocutor there argued:

A week ago there were 19 states that had state constitutional amendments banning gay marriage . . . in the election last week, Alabama passed their own state constitutional amendment [] by about a 4 to 1 margin . . . Every election, more states pass them [and surely] any state that has gone to the trouble of passing its own state constitutional amendment would easily ratify a similar amendment to the US Constitution. In addition, 44 states have passed laws banning same sex marriage. I’d expect all of these state would ratify it.

It is certainly true that “[n]o state measure to ban same sex marriage that has ever been presented to the voters has ever failed,” and that many states (twenty, at time of writing) have banned homosexual marriage by referendum-approved amendment. I will also readily agree that, were a poll taken tomorrows in each state, as to whether there should be homosexual marriage, the result would be a coast-to-coast ban, in every state including Massachusetts. Yet proponents have failed to appreciate that the assumption that public opinion will assure ratification – or counting the number of red states vs. blue states, or anything else as crude – is an inadequate metric.

I suggest, however, that their assumption is flawed. First, it presumes that a person who supports banning homosexual marriage by statute or in their state Constitution will not necessarily support banning it at the Federal level (as we have seen, for example, Sen. McCain). I suppose a counterargument might be that the kind of people who support the ban aren't the sort of folks who think deeply about the nature of federalism and government, but I refuse to surrender to that cynicism.

But that is not the focus of this post, which brings me to the second reason I think the “overwhelming hostility” argument fails: Article V does not require an opinion poll to be taken. State legislatures ratify or do not ratify, not public opinion; it is this latter point I want to explore today. The most apt measure, in my view, is to consider the procedures each state currently has in place for ratifying amendments by their legislatures, and compare those procedures to a current partisan balance in each statehouse. To be sure, this metric has several flaws, the most significant of which is the (undoubtedly false) presumption that Democrats will vote against the amendment, while Republicans will vote for it. This is undoubtedly and demonstrably false; this Republican opposes the FMA, as I will discuss in part II, infra, and as we saw in the House vote, see n.1, supra, there are certainly Democrats who support it. None-the-less, I would suggest that the chances are high that the numbers of dissenters from the prevalent party line on each side are likely to be roughly equal, and at the very least, I would suggest that this approach is much more likely to produce a more accurate projection than the alternatives available.

A. Methodology

We will consider figures and information from two publications of the National Council of State Legislatures: Partisan composition of legislatures, 2006, and State Legislative Procedures for Considering Proposed Amendments to the U.S. Constitution, 2003.4

For the sake of convenience, I will borrow the grouping of states offered by Todd Estes' paper Where the Votes are: The Electoral Geography of the Coming Democratic Majority (on which I previously offered criticism and comment in Electoral tectonics for statisticians: a reply to Todd Estes, 2/9/06). Estes groups the states into the Democratic base states (18 states) (California, Connecticut, Delaware, Hawaii, Illinois, Maine, Maryland, Massachusetts, Michigan, Minnesota, New Jersey, New York, Oregon, Pennsylvania, Rhode Island, Vermont, Washington and Wisconsin), states leaning Democratic (3 states) (Iowa, New Hampshire and New Mexico), states leaning Republican (10 states) (Arizona, Arkansas, Florida, Kentucky, Louisiana, Missouri, Nevada, Ohio, Tennessee, West Virginia) and the Republican base states (19 states) (Alabama, Alaska, Colorado, Georgia, Idaho, Indiana, Kansas, Mississippi, Montana, Nebraska, North Carolina, North Dakota, Oklahoma, South Carolina, South Dakota, Texas, Utah, Virginia and Wyoming). I will consider each of these groups in turn (and, for reasons that will become apparent, in reverse order).

B. The Republican base states

Alabama requires a “3/5 majority of members elected to each chamber” to ratify an amendment to the United States Constitution. But Democrats control the Alabama House 63 to 42, and the Alabama Senate 25 to 10. Ergo, although three fifths of Alabama's population may be against homosexual marriage, see Alabama bans homosexual marriage – bipartisanly, 6/8/06, the sheer numbers in the legislature make it likely that even what we would imagine as the quintessential state that might ratify the FMA would reject it.

Colorado has am unusual split requirement: in the “Senate [a] [m]ajority of members elected; [and in the] House: 2/3 of members elected.” The Colorado Senate is controlled by a narrow Democrat majority, 18 to 17, making failure there likely, and the House, too, is controlled by a slightly less narrow Democrat majority, 35 to 30, making failure in the House almost certain. Ergo, Colorado must be counted as a no.

Georgia requires a “2/3 majority” in its Senate. 34 Republicans face 22 Democrats in a 56 seat body, making the threshold 38 votes – which places it inevitably into the “probable no” column. Idaho also “requires a 2/3 vote of the entire membership of both bodies.” Republicans have thumping majorities in both chambers (57 to 13 and 28 to 7), so whichever way you slice it, Idaho is an almost certain yes. And Kansas, too, requires “2/3 of members elected to each chamber”; the amendment thus requires 84 votes in the House and 27 votes in the Senate. With 30 votes in the Senate, the amendment might get halfway through the Kansas legislature, but is likely – not certain - to stall in a House where Republicans have only 83 votes. Kansas, surprisingly enough, is too close to call – Tully, thoughts to share?

Indiana requires a “Constitutional majority of each chamber,” which equates to a majority of the total members elected.5 Republicans narrowly control the House 52 to 48, and the Senate 33 to 17, making Indiana a probable yes. Alaska requires a “[m]ajority of [the] full membership of each house,” and with Republicans controlling both chambers of its legislature – 26 to 14 and 12 to 8, respectively – Alaska seems a likely yes.

Mississippi requires only a strait majority vote in each chamber (no pun intended), but even here – in a state that has not voted for a Democratic Presidential ticket since 1976 – this avails FMA proponents none: Democrats control both chambers of the Missisippi legislature, and it isn't even close: 75 to 47 and 27 to 24. Mississippi is a certain no. Montana - Bush voting, but increasingly Democratic-leaning6 - is a closer-run thing, but while (like Mississippi) it requires only a strait majority vote in each chamber, the House is divided 50-50, while the Senate is Democratic-controlled by a 27 to 23 split. Like Georgia, Montana is a close thing, but ultimately, goes in the no column.

Nebraska, of course, is the odd duck. It requires a “Constitutional majority in the [unicameral] legislature”, but determining the fate of the FMA there is rendered nearly impossible by its odd conceit of claiming a non-partisan election and legislature (although “almost all the members of the legislature,” notes Wikipedia, “are affiliated with the state affilate of either the Democratic or the Republican party and both parties explicitly endorse candidates for legislative seats”). I lack the resources to determine the likely fate of the FMA here, so perhaps one of our readers from Nebraska can help out? In any event, as you might already be able to guess, the fate of the FMA will not hinge on Nebraska, so this point is interesting, but academic.

North Carolina requires a simple majority in each chamber; Democrats control both chambers, 63 to 57 and 29 to 21, ergo, North Carolina is a likely no. By contrast, fellow simple majority-state North Dakota requires a “majority of members elected to each house”, and with Republicans controlling both chambers 66 to 26 and 32 to 15 respectively, North Dakota is a certain yes.

Oklahoma, too, requires a “majority of the members elected to each chamber”, but has a divided statehouse: Republicans control the House 57 to 44, but Democrats control the Senate by a narrow 25 to 22 majority. It's possible that this would change pending an election, but for now, Oklahoma is a probable no.

South Carolina and South Dakota both require a strait majority vote; both are a certain yes, with Republicans controlling the South Carolina House 74 to 50 and the South Carolina Senate 26 to 20, and the South Dakota House 51 to 19 and the South Dakota Senate 25 to 10. Likewise, Texas' requirement of a simple majority in each chamber, combined with firm GOP control of both chambers (87 to 63 and 19 to 12) means it, too, is a likely yes. The same pattern repeats itself in majority rule Utah, where the GOP dominates the legislature 56 to 19 and 21 to 8. Utah is a certain yes.

Virginia is a probable yes; it requires simple majorities, and the GOP has them, but only narrowly, controlling the House of Delegates 57 to 40, and the Senate 23 to 17. Passage in the House seems likely, but the Senate majority is narrow enough that Virginia is only a probable yes.

And lastly, Wyoming requires a “[m]ajority vote of both houses”- and, curiously enough (although not uniquely, as we will see), for it to be “sent to governor for approval.” The requirement for gubernatorial approval is almost certainly unconstitutional: an amendment becomes operative “when ratified by the Legislatures of three fourths of the several States,” U.S. Const., Art. V (emphasis added). The Wyoming legislature is Republican controlled by significant majorities (46 to 14 and 23 to 7), and so approval by the legislature is certain - but it is far from clear that Democratic Gov. Dave Freudenthal would give his assent. It seems to me that the Wyoming requirement of the Governor's assent is unsustainable in light of Art. V's clear command, and thus, since Wyoming's legislature would easily ratify the FMA, Wyoming should be counted as having ratified the FMA if and when its legislature does so, and in light of the likelihood of that, I will count it as a certain yes.

From the foregoing, it can be seen that – barring some fairly substantial shifts in state politics – the FMA falls on stony ground even in the states where, at first glance, one might expect it to succeed. Of the nineteen states Todd Estes classes as the GOP base, it is likely to pass in only nine can be counted as almost certain ratifiers - and, as the reader might expect, it is all downhill for FMA proponents from here.

C. Republican-leaning states

Arizona's Senator, John McCain, opposes the FMA but supports the passage of a state amendment banning gay marriage. Should McCain not get his way on the FMA, though, Arizona is a probable yes, requiring as it does only a simple majority in each chamber, and both of which being controlled by the GOP, 39 to 21 and 18 to 12. A comfortable yes from Arizona.

Arkansas is another strait majority state, and the FMA has zero chance here, the House being Democratic-controlled 72 to 28, and the Senate 27 to 8. Ergo, Arkansas is a certain no. Florida also requires only majority votes in each chamber, but the GOP controls here 84 to 36 and 26 to 14, making it an almost certain yes. Kentucky is a simple majority state, but has a divided legislature. The amendment might make it through the Senate, where the GOP controls 22 to 15, but will certainly fail in the House, where the Democrats control 56 to 44.

Louisiana – another simple majority state. With both chambers controlled by Democrats, 65 to 39 and 24 to 15, it seems a probable no, although in deference to Pat, I'm not quite ready to call this one yet.

Missouri requires a “constitutional majority vote of both chambers (82 House; 18 Senate).”7 Republicans control the Missouri House 97 to 66, and the Senate by 23 to 11, which means passage here is almost certain. Ohio requires an absolute majority in both chambers8; GOP control here (61 to 38 and 22 to 11) would seem to assure that Ohio is a yes.

Tennessee requires “a majority vote in each chamber. Resolution is sent to the governor for signature, but it cannot be vetoed.” This sounds like Wyoming in some ways (indeed, like Wyoming, Tennessee is a red state with a blue governor), but the stipulation that the governor cannot veto it makes this purely a formality. Less of a formality is the GOP's razor-thin control of the Tennessee Senate (18 to 15) and almost as narrow lack of control of the Tennessee House (53 to 46), pushing the Volunteer State into the probable no column. Nevada, too, requires a constitutional majority,9 but Democratic control of the House, 26 to 16, puts it in the no column. Lastly, West Virginia is another simple majority state, and Democrats rule the roost here, 69 to 31 and 21 to 13. A definite no.

Thus, four more yes votes, but likely six more noes. All probabilities are that, even before we consider the states one would consider naturally disposed against the amendment, there are probably enough failures to ratify to doom the FMA; recall, any thirteen states can reject a Constitutional amendment, and we have thusfar counted fourteen probable noes just among the red states. We turn now to the blue states.

D. Democratic-leaning states.

Iowa, New Hampshire and New Mexico all require simple majority votes10 but only one is a likely yes vote: in New Hampshire, the GOP controls the legislature 246 to 152 and 16 to 8. But in Iowa, a razor thin 51 to 49 GOP majority in the House, and no overall control in the Senate, makes that state too close to call, while thumping Democratic majorities in New Mexico's legislature make that state a certain no.

E. The Democratic base states

Unsurprisingly, the states that constitute the Democratic base would almost certainly overwhelmingly reject the FMA.

California requires “a Constitutional majority of full membership in each house (Senate: 21 votes; Assembly: 41 votes).” Presently, Democrats have a majority in both chambers of the California assembly (48 to 32 and 25 to 15, respectively), ergo, California can be counted as a no. Maryland also requires a “constitutional majority in each chamber.”11 Republicans control the Maryland Senate by 33 to 14, but Democrats control the House 98 to 43. Maryland is a certain no.

Connecticut's legislature has large Democratic majorities (99 to 52 and 24 to 12) suggests it is a no. So far as I understand the process, Connecticut treats amendments to the U.S. Constitution in the same manner it would treat an amendment to its own Constitution (see Const. of Connecticut, Art. 12): passage by a three quarters majority will place the amendment before the voters, pursuant to CTC §9-369, while passage by a simple majority but less than a three-quarters majority requires passage in a subsequent general assembly before against being put to the voters. Connecticut, then, has a unique feature in ratification: the legislature votes on the amendment, and then sends the issue to a statewide referendum.12 As with the gubernatorial involvement in Tennessee, one has to wonder if this is additional referendum, procedure is, in fact, Constitutional - but that is a matter I will address another time; in the instant case, though, this probably aids the FMA none, because while (as noted above) no ban on homosexual marriage has ever been defeated by voters, to get onto the ballot, it must survive an unsurvivable battle in the General Assembly, making Connecticut a certain no.

Delaware requires a vote of “2/3 of members elected to each chamber.” Control in Delaware is split; in the House, Republicans control 15 to 25, while in the Senate, Democrats control 13 to 8. A certain no. Illinois requires a “joint resolution passed by 3/5 vote from both chambers;” since Democrats control the Illinois House 65 to 53, and the Senate 32 to 26, Illinois, too, is almost certainly a no.

Maine has the intriguing requirement of a “[m]ajority vote of the members present in each house.” This stipulation of members present makes it something of a wildcard, insofar as it depends greatly on events that might prevent certain legislators showing up, all the more so since, while Democrats control both chambers of the Maine legislature, they do so by the razor-thin majorities of 74 to 73 and 19 to 16. Maine then, is too close to call. Massachusetts, like Maine, requires a “majority vote of the members present and voting in each chamber,” but unlike Maine, the result here is clear-cut: Democrats dominate the General Court of Massachusetts, 137 to 20 in the House and 34 to 6 in the Senate. A certain no.

Republicans are almost extinct in Rhode Island, both chambers being dominated by Democrats, 60 to 15 and 33 to 5 respectively. As with Tennessee and Wyoming, there is the stipulation of gubernatorial signature - but where Tennessee explicitly denies a veto power, Rhode Island explicitly gives it. This is certainly unconstitutional, but is in any event irrelevant here, as the amendment will never make it through the legislature to the governor's desk, making Rhode Island an incontestable no.

Minnesota requires a simple majority of each chamber; despite razor-thin GOP control in the House, 68 to 66, Democrats retain the Senate 37 to 29, making Minnesota a likely no. Likewise, New Jersey requires a strait majority in each chamber, and Democrats have them, 48 to 32 and 22 to 18. New Jersey is a no. New York, another “majority in each chamber” state, has a Democrat-controlled House, 105 to 45, and a Republican-controlled Senate, 35 to 27, making it, too, a no. A similar but inverted story in Oregon, where a Republican-controlled House (33 to 27) might muster a majority for the FMA, but the Democrat-controlled Senate (18 to 12) certainly will not. Hawaii requires “requires a majority vote in both chambers.” Democrats control the Hawaii House 41 to 10, and the Hawaii Senate 20 to 5, ergo, Hawaii can be counted as a no.

Michigan, Pennsylvania and Wisconsin are also “majority in each chamber” states, but unlike the preceding five simple majority states, they are a yes. Surprisingly (or possibly not, considering that it adopted a constitutional amendment banning homosexual marriage back in 2004 by a 59% popular vote), Michigan is probably a yes: Republicans control the House 58 to 52, and the Senate 22 to 16. We will thus count Michigan as a yes. Likewise, in Pennsylvania, Republicans control the House 109 to 94, and the Senate 30 to 20, and in Wisconsin, the GOP controls 60 to 39 and 19 to 14, making these three states the FMA's only certain ratifications in the Democratic base states.

Lastly, Washington and the People's Republic of Vermont, are also simple majority states. Democrats have comfortable majorities in both Vermont chambers, 83 to 60 and 21 to 9 respectively, making Vermont a certain no,and slightly narrower Democratic majorities in both chambers (56 to 42 and 26 to 23) also make Washington a no.

F. Summary

To briefly recap, here are the states arranged into “yes”, “no”, “probably no” and “probably yes”:

No: Alabama, Arkansas, California, Colorado, Delaware, Hawaii, Illinois, Kentucky, Maryland, Massachusetts, Minnesota, Mississippi, Montana, New Mexico, North Carolina, Nevada, New Jersey, New York, Oregon, Rhode Island, Washington, West Virginia and Vermont (23).
Probably no: Connecticut, Georgia, Louisiana, Oklahoma and Tennessee (5).
Yes: Arizona, Alaska, Florida, Idaho, Michigan, Missouri, North Dakota, Ohio, Pennsylvania, South Carolina, South Dakota, Texas, Utah, Wisconsin and Wyoming (15).
Probably yes: Indiana, New Hampshire and Virginia (3).
Too close to call: Kansas, Nebraska, Iowa and Maine (4).

From the foregoing, it should be readily apparent that whatever its merits or demerits, the FMA is dead on arrival. Before they can be taken seriously, proponents of the FMA must demonstrate that they have a strategy for surmounting the immense mountain than we have seen lies before them, a challenge that most seem to (at best) scarcely perceive lies betwixt them and their objective.

Even if you disagree with the foregoing assessment, I would suggest that if nothing else, it should change the framework of the debate. Whatever else this discussion demonstrates, it demonstrates at least this much: the default assumption must be the FMA's failure. The onus is now firmly on proponents of the FMA to show how this analysis is wrong, and the frame of the debate is also clear: proponents must explain specifically which Democrats will vote against the party line in which state. If nothing else, this should serve to make the terms of the debate clear, and thus its conduct more honest. In the interests of fairness, on the other hand, there are “blue states” that I have demonstrated to be presumptively in the “yes”column, and one can imagine that many opponents of the FMA will be equally indignant; they bear the same burden as do proponents, of explaining why the numbers alone are not dispositive.

II. Why I don't support the FMA

Stubborn Facts suggests in its masthead that you “get your facts first, and then you can distort them just as much as you please,” but I think an equally good motto would be the maxim of the late Senator Daniel Patrick Moynihan, who warned that “everyone is entitled to his own opinion but not his own facts.” In the preceding section, I perhaps commingled facts with speculation, but I think the overall thrust is that anyone is entitled to support the FMA, but not to expect its passage; facts are stubborn things, but numbers, of course, maddeningly conjoin stubbornness with inscrutability. In this section and the next, though, I want to briefly respond to those who object to the argument that the FMA is "bad federalism".

The principle argument used against those of us who raise federalism concerns with the FMA is that it is not actually inconsistent with Federalism, because by using the Article V amendment process, adopting this amendment is far more legitimate than the arrogation of power by the Supreme Court in, essentially, reading new clauses into the Constitution, as it did, for example, in Roe v. Wade. This is a bizarre argument, and singularly effective, because in its incoherency, it is hard to argue with: of course an amendment adopted by the legitimate process is valid in a way that a quasi-amendment made up by the Supreme Court cannot be. But is hard to see how that is an argument that supports the proposition that Federalism is not affected negatively by the FMA. Ultimately, when discussing the impact on the Federal structure, the question of how this change would be ratified is irrelevant; the salient question is this: “does this amendment change the balance of power between the Federal constitution and its authorities, on the one hand, and the residuum of sovereignty retained by the states, on the other?”

The answer, of course, is that this is precisely what the FMA does. Regardless of how the change is ratified, the practical effect is that the scope of what a state can and cannot do is reduced by the FMA, in no more nor less a real sense than the scope of what a state can and cannot do was (illegitimately) confined by Roe, or than that scope was (legitimately) confined by the Fourteenth Amendment. There is a colorable argument that this change is necessary, and even a fair argument that it might be advisable, but it stretches credulity to suggest that this amendment is about “protecting democracy,” or about protecting the right of the people in each state to protect the traditional understanding of marriage from marauding full faith and credit clauses (I will suggest an alternative that addresses these concerns in Part III). Federalism, in my view, is closely associated with the principle of subsidiarity: the American constitutional system, created to both protect the essential sovereignty of the states, but to bind them together into one nation; it has evolved into a system where, in my view, the Federal structure suggests subsidiarity: matters of public policy ought to be handled by the competent authority closest to the governed. Everything about the Federal Constitution's design telegraphs this: the Federal authorities to exercise a few necessary competencies, and ONLY those competencies, and to have robust power to exercise those competencies, while leaving the states essentially free to do what they want in all areas not reserved to the national government or protected by the national constitution. We have already seen that the American people are, at this time, overwhelmingly hostile to homosexual marriage; the matter is being dealt with at the state level; there is simply no need to create a Federal straitjacket (which can only accelerate the ever-growing trend of the maligning and sidelining state governments).

Or is there?

III. The alternative

It isn't as clear to me as it perhaps is to some other FMA skeptics that the FMA does not address a real threat: the legalization of homosexual marriage by the Federal courts. That is an outcome I like almost as little as the FMA; regardless of whether or not one supports homosexual marriage as a normative matter, it should not be forced on people by the courts. 13 In any event, it is far from clear that courts lack the nerve to pull the trigger, as we saw in 2004, when, in a bizarre echo of four years before, the Massachusetts Supreme Judicial Court declared George W. Bush the winner of the 2004 election, and fanned the Federal Amendment movement into a burning flame by explicitly creating the precise threat that the FMA's proponents usually claim to be most concerned about: the judicial imposition of homosexual marriage on a self-evidently unwilling nation.

I have to admit that I have my doubts that this is really what is going on here. To be sure, fear of judicial activism may have fanned the flames, but let's be clear what we're dealing with. The FMA declares that:

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

For reasons given above, I object to this language precisely because it isn’t about protecting state prerogatives, or the ability of the people to pass their own laws,or stopping judicial activism, or anything like that: this is about banning homosexual marriage at the Federal level, period. If it were about those things, one could easily craft an amendment that could get people who have federalism objections on board. In the spirit of compromise, I suggest that if we have to go through this business of an FMA, why not have an amendment which really does leave it to the states; let's have an amendment which really does do nothing more than safeguard society from judicial activism. Let's have an amendment that says this:

Nothing in this constitution shall be so construed as to remove or abridge the prerogative of each state to define marriage as it so prefers; nor shall the full faith and credit clause (or any other part of this constitution) be construed to require any state to recognize the validity of a marriage conducted by another state.”

Such language is not problem-free (most significantly, such language might have the potential to be taken as repudiating Loving v. Virginia), but solves the judicial activism dilemma without running afoul of federalism concerns.

Post facto:
The California proposal and legislative exclusivity under the Federal Constitution (9/28/07)
Does Palin support the FMA? (10/20/08) (followed)

  1. 1. Technically, the bill that failed three weeks ago was titled the “Marriage Protection Amendment”; regardless, I will refer throughout to the “FMA” or “Federal Marriage Amendment,” since this is not the first -and will not be the last – Federal Marriage Amendment offered in similar language.
  2. 2. A two-thirds majority in the House of Representatives is 290 votes. The GOP has 231 votes in the 109th U.S. House of Representatives, meaning that if – and that is a big “if' – Speaker Hastert can keep all his ducks in line, the FMA's proponents will still need to find 59 Democrats to vote yes. They found 36 last time they tried (on an identical bill), but that gets proponents nothing, since 27 Republicans bolted (I mentioned it was a big “if” right?).
  3. 3. See The Federalist ? 43 (Madison) (“That useful alterations will be suggested by experience, could not but be foreseen. It was requisite, therefore, that a mode for introducing them should be provided”).
  4. 4. This information has been verified in personal correspondence as being up-to-date by NCSL, but where an alternative or supplementary source is used, it is indicated in subsequent footnotes.
  5. 5. Rules of the Indiana House of Representatives (PDF warning), Rule 1 ("'constitutional majority' means a majority of all the members elected to the House"); cf. Rules of the Indiana Senate (PDF warning), Rule 78.
  6. 6. See J. Pittaway, Anatomy of a red state rebellion in THE AMERICAN CONSERVATIVE, 3/28/05, p.16.
  7. 7. See Const. of Missouri (PDF warning), Art. III, §17, ("No amendments to bills by one house shall be concurred in by the other, nor shall reports of committees of conference be adopted in either house, nor shall a bill be finally passed, unless a vote by yeas and nays be taken and a majority of the members elected to each house be recorded as voting favorably"); accord Missouri House of Representatives Rule 2 ("The term 'constitutional majority', as used herein, shall mean eighty-two members of the House").
  8. 8. See Const. of Ohio (PDF warning), Art. II §15(A) ("The General Assembly shall enact no law except by bill, and no bill shall be passed without the concurrence of a majority of the members elected to each house”)
  9. 9. See Const. of Nevada, Art. IV §18, ("a majority of all the members elected to each House is necessary to pass every bill or joint resolution")
  10. 10. Iowa requires a “constitution majority” according to NCSL; see Const. of Iowa (PDF warning), Art. III, §17, ("[n]o bill shall be passed unless by the assent of a majority of all the members elected to each branch of the General Assembly, and the question upon the final passage shall be taken immediately upon its last reading, and the yeas and nays entered on the journal"); cf. House Rules 7, 39, 73(5) and 81 (all uses of "majority" in the sense of votes refer to a "constitutional" majority).
  11. 11. See Const. of Maryland (PDF warning), Art. III §28, ("No bill, nor single group of bills ... shall become a Law unless it be passed in each House by a majority of the whole number of members elected").
  12. 12. I am indebted to Jennifer at the Connecticut General Assembly Legislative Library and Cheryl at the Connecticut State Law Library for assistance above and beyond the call of duty in tracking down this information, which seems to have eluded the NCSL.
  13. 13. Proponents of the FMA might keep in mind that the closest analog to the FMA in constitutional history is prohibition. To paraphrase Ian Gilmour (who said it about marxism), prohibition suffered the only fate for a theory that is worse than death: it was put into practice; five decades of theory were thus wrecked on the rocks of one decade of practice. See generally, T.R. Pegram, Prohibition, in THE AMERICAN CONGRESS: THE BUILDING OF DEMOCRACY 411-427 (J.Zelizer, ed. 2004). Just as nobody did more to embed protestantism in England than did Queen Mary with her efforts to stamp it out (see, e.g., B. Fraser, THE STORY OF BRITAIN 280-285 (2003) (quoting the last words of Bishop Ridley: "[our execution] this day will light a candle ... [that] shall never be put out") so I suspect that the FMA would work out against its proponents in the end. But on the other hand, nor should proponents of homosexual marriage forget that the last time that so drastic a change in the nations laws was forced on an unwilling nation by the courts, in Roe, it ignited a thirty year plus war that has corrupted every Presidential election and Supreme Court nomination since, a battle which has polarized and divided the country ever since it began. Conservatives did not start the culture wars, but they are getting good at fighting them.

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