President Bush favors amending the Constitution to ban gay marriage, but he really has no say over what happens beyond lending the prestige of his office to the debate. It’s strictly a matter, first, for Congress, and the GOP leadership there seems somewhat less than enthusiastic about tackling it.
It takes a two-thirds majority of each house to pass a constitutional amendment, which then must be sent to the individual states for ratification by at least 38 of them. The two-thirds hurdle is a high one, and it’s clear the GOP leadership has nowhere near the necessary votes at the moment. For one thing, not all Republicans favor an amendment. Even if they did, they’d need support from a significant number of Democrats to get it passed. Democrats are not in a particularly helpful mood these days.
“We're looking at other ways of doing it, knowing that it will be very difficult to pass a constitutional amendment both through the House and the Senate," House Majority Leader Tom DeLay (R-Tex.) told reporters. "The groups that are for a constitutional amendment are split over what it would be. We're trying to bring them all together and unify them. That's going to take some time."
The arguments about same-sex marriage, however, are in full bloom.
At the Wall Street Journal (site registration required), Mary Ann Glenndon, a Harvard law professor, claims that extending the rights of marriage to same-sex couples would increase taxes (for Social Security) and insurance premiums. Would it? Beats me, but it seems safe to guess that it would in the case of Social Security. No doubt this will be quantified as the debate rolls on.
She also asks this somewhat muddled apples-and-oranges question: “How can one justify treating same-sex households like married couples when such benefits are denied to all the people in our society who are caring for elderly or disabled relatives whom they cannot claim as family members for tax or insurance purposes? Shouldn't citizens have a chance to vote on whether they want to give homosexual unions, most of which are childless, the same benefits that society gives to married couples, most of whom have raised or are raising children?”
I hope this is a rhetorical question, since in the real world no citizens, other than those who are members of Congress or state legislatures*, will get to vote on this anyway.
Columnist Crispin Sartwell’s argument makes a lot more sense to me:
“Amending the Constitution is required to ban gay marriage, because the document gives the federal government no jurisdiction whatever over marriage. It shouldn't. It never was meant to. And the proposed amendment fundamentally contradicts other aspects of the Constitution:
“The first amendment guarantees of freedom of religion and of association.
“The ninth and 10th amendment limitations on the power of the federal government.
“The equal protection clause of the 14th amendment.
“More frightening, it asserts an absurdly intrusive power over the private lives of each of us, whether we are gay or not. …”
Indeed.
* Footnote: UCLA law professor and blogger Eugene Volokh points out that Congress could, if it wanted, require the states to hold constitutional conventions to consider ratification of an amendment, rather than giving state legislators that job. In that case, a few more citizens would be able to vote directly on the amendment. Volokh’s post explores the possible political rationales for choosing one route over the other.