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Legal Briefs
Dangerous Amendment
by Susan Murray & Beth Robinson
A coalition of religious leaders who have formed a group called Alliance for Marriage recently held a press conference. They announced that they will be lobbying Congress to pass a federal constitutional amendment to “protect the institution of marriage” from being redefined to include gay and lesbian couples. According to this group, “powerful forces” who don’t have popular support (presumably gays and lesbians) are pushing for the benefits of marriage; the group claims that gay marriage would not only undermine the institution of marriage itself, but would be the downfall of our entire democracy.
It is obvious that it is a mean-spirited attempt to deprive gay and lesbian families of the same benefits that other American families enjoy. But is this group’s agenda a real threat? Should we be worried about a federal constitutional amendment? The answer to both questions is: absolutely!
Here’s the exact language of the group’s proposed amendment:
“Marriage in the United States shall consist only of the union of a man and a woman. Neither this constitution (the Constitution of the United States) or the constitution of any state, not state or federal law, shall be construed to require that marital status or the legal incidents thereof be conferred upon married couples or groups.”
Thus, this proposed amendment does two things. First, it would enshrine the federal DOMA statute into our federal constitution (you remember DOMA, the “Defense of Marriage Act,” which passed by an overwhelming majority of Congress back in 1996, and which President Clinton readily signed? That law defines marriage, for purposes of federal benefits such as immigration and social security, as a union between one man and one woman only. This federal constitutional proposal would insert this discriminatory language into our federal constitution).
As drastic as this is, the second effect of this amendment is even more outrageous; taken at its most literal, this proposal would not only void the Baker v. State decision, it would also void the civil union law! In other words, this amendment would prohibit a state Supreme Court from interpreting its state constitution to require marriage between same sex couples, and would also prohibit a state legislature from passing a law to give marriage or marriage-like rights to gay couples.
In order for a federal constitutional amendment to pass, two-thirds of the federal Senate and two-thirds of the federal House or Representatives must pass it, and then three-quarters of the states (i.e., 38 states) must ratify it. At this point, no Representative or Senator has stepped forward to sponsor this amendment, but there certainly isn’t a shortage of people in Congress who oppose gay rights and who presumably would jump at the chance to sponsor this amendment (think Senator Jesse Helms, among others).
Even though passage of this proposed amendment (or one similar to it) may be far off, we can’t forget that Congress has already passed the federal DOMA overwhelmingly, and that more than 38 states have already passed mini-DOMA’s. The prospect of this federal constitutional amendment is real and the repercussions for gays and lesbians are enormous.
Throughout our history, amendments to our federal constitution have been passed to remove various forms of discrimination against our citizens (such as the Thirteenth Amendment, which outlawed slavery, and the Nineteenth Amendment, which gave women the right to vote). In other words, the history of our federal constitutional law has been to expand, not reduce, the freedoms and rights of our citizens. In contrast, this proposed amendment would actually enshrine discrimination in our most hallowed document—a despicable prospect not only for gays and lesbians, but for all citizens of this nation.
Susan Murray and Beth Robinson are attorneys at Langrock Sperry & Wool in Middlebury, Vermont whose practices include employment issues, family matters, estate planning, personal injury and worker’s compensation cases, and general commercial and civil litigation. In this column, we hope to provide information about important laws and court cases that may affect our rights, as well as practical nuts and bolts advice for protecting ourselves and our families. If you’d like to see us cover a particular topic, please feel free to write OITM or call us at 388-6356.