Today, a group of representatives in Congress have tried to make a splash by announcing the "Federal Marriage Amendment," which they dream would amend the Constitution so that no state anywhere could ever give same sex couples the right to marry legally or anything even resembling that. Can you believe that this group would call itself "multi-cultural?"

There's another good marriage equality website at www.allianceformarriage.org. This organization appears to be in Virginia. It has extensive coverage of the proposed amendment and describes its potential impact.

I don't take this to be a serious threat at this point. There are only a handful of co-sponsors of the proposal, though they act like they think they speak for all of America. This sort of hubris and heterosexism has been a plague on civilization for a long, long time. I feel more sickened than frightened by this proposal. However, the answer for all of us is clear: write to our Representatives and Senators and urge them to oppose this hostile measure, to commit to vote against it, to block it at any turn they can, and, in fact, to use it as a springboard to moving toward the just resolution of this question, the repeal of the federal so-called "Defense of Marriage Act" and the enactment in all the states of marriage equality for couples who happen to be of the same sex.

A message from the Marriage list today is worth repeating here, for it puts the matter of a constitutional amendment into context and explains how our Constitution is actually set up as regards amendments and such. The message is essentially correct, from what I know, and I have some experience in this area: in 1965, while a college intern with Indiana Senator Birch E. Bayh, Jr. (father of Indiana's current Senator Evan Bayh), I was able to observe the process first-hand. Senator Bayh was the author of the 25th Amendment to the Constitution, which is on presidential succession and disability. It passed the Congress that summer and went out to the states for ratification. It was, indeed, ratified, and that is how Gerald Ford became an appointed Vice President (with approval by Congress) under Nixon (and succeeded to the presidency on his resignation) and how Nelson Rockefeller stepped into the Vice President's position under Gerald Ford. All of us in Senator Bayh's office became experts on amending the U.S. Constitution.

The message from the Marriage List as authored by Micheal T. McLoughlin, D.Jur., M.A. appears below. I have left in all of the references to the Marriage List itself, so you can both see an example of what it can deliver every day to your own email box and find, at the end, instructions on how to join it.

-----Original Message-----
From: marriage-admin@lists.qrd.org
[mailto:marriage-admin@lists.qrd.org]On Behalf Of Micheal T McLoughlin
Sent: Wednesday, May 15, 2002 3:16 AM
To: marriage@lists.qrd.org
Cc: tips@upi.com
Subject: Re: [*M*] US: Group seeks federal marriage amendment

On Tue, 14 May 2002, John Wilkinson forwarded:

> United Press International, May 14, 2002
> http://www.upi.com/view.cfm?StoryID=14052002-053040-3458r
> Group seeks federal marriage amendment
> By Kathy A. Gambrell, White House reporter

[snip]

> Congress last amended the Constitution in 1971 when it allowed 18-year-olds
> the right to vote.

A point of legal clarification that Ms. Gambrell and UPI have missed.
Congress can PROPOSE an amendment to the Constitution but Congress does
NOT amend the Constitution - the STATES do that.

There are two ways to propose an amendment to the U.S. Constitution:

1. Congress, with two-thirds of both houses concurring, can propose an
amendment; or
2. Upon request by two-thirds of the states, Congress must call a
constitutional convention.

The President has no power to propose amendments to the Constitution, nor
can the President prohibit the proposal of an amendment. He (or,
eventually, she) is simply not part of the process. Neither is the
Supreme Court part of the process, but it and lower courts can hear cases
concerning whether an amendment has been proposed as U.S. Const., Art. V.
directs.

Note: Presidents can *ask* Congress to propose an amendment, just as you
or I or anybody else in the world can ask the U.S. Congress to do
something. But while Congress is obligated to consider any *legislation*
the President might propose (the President does have *that* power), it is
not bound to consider a request from the President to amend the
Constitution, any more than it is bound to consider a request from anyone
else - because Constitutional amendments are not legislation. The
President can veto legislation. The President *can't* veto a proposed
amendment to the Constitution.

Once an amendment is proposed, it is sent to the states for ratification.
There are two ways for a proposed amendment to be ratified:

1. The legislatures of three-fourths of the states approve the proposed
amendment; or
2. Constitutional conventions in three-fourths of the states approve the
proposed amendment.

Congress must identify which method of ratification shall be used. In
either case, there are 50 states; 75% of 50 is 37.5, so at least 38
states must ratify a proposed amendment before it becomes part of the
Constitution.

Again, the President has no role in the process but is the same as any
ordinary citizen in his home state. The Supreme Court cannot rule on the
constitutionality of a proposed amendment per se - since it's not part of
the Constitution yet, and once it *is* part of the Constitution it *must*
be constitutional. Neither can the Supreme Court give an opinion as to
how the proposed amendment would affect the rest of the Constitution or
existing federal and state laws, because that kind of opinion does not
involve a case or an active controversy - and U.S. Const. Art. III
specifies the Supreme Court can only hear cases and controversies. But,
again, the Supreme Court and lower federal and/or state courts CAN hear
cases about the constitutional validity of the process by which a proposed
amendment is ratified.

For hypothetical example: If 38 states ratify a proposed amendment, some
by legislative action and some by state conventions, a question would
arise whether the amendment was properly ratified - because U.S. Const.,
Art. V specifies ratification must be by either legislative action or
convention, not by both. So, this hypothetical amendment would not have
been properly ratified, and would not be part of the Constitution.
Additionally, if Congress did not specify how this amendment should have
been ratified by the 38 states, then the way in which the amendment was
proposed would have been unconstitutional - which would throw out all of
the ratifications, even if they had been valid, because a state cannot
validly ratify and invalidly proposed amendment.

Note that ratification of the Constitution itself was the subject of U.S.
Const. Art. VII, not Art. V. Under Art. VII, the Constitution took effect
when 9 of the 13 states (i.e., 9) ratified it but it only applied to those
states that did ratify it. George Washington had been President for a
full year before Rhode Island ratified the Constitution and, during that
time, Rhode Island was not bound by the Constitution.

Not so with amendments produced under Art. V. All amendments to the
Constitution are binding on all states, whether they ratify them or not.

Regarding Congress proposing an amendment, a key phrase in U.S. Const.,
Art. V is "whenever two-thirds of both Houses shall deem it necessary."

Congress passed the Defense of Marriage Act in 1996. In the time since,
the Hawaii Supreme Court dismissed the case *Baehr v. Miike* because the
Hawaiian Constitution had been amended to allow the Hawaii Legislature to
limit marriage to one man and one woman. The Vermont Supreme Court held
that either marriage or an equivalent framework must be made available to
same-sex couples. The Vermont Legislature then enacted civil unions
legislation to provide the parallel framework, while reserving (in that
same law) the status of marriage to one man and one woman. California has
created state level domestic partnership, and is considering civil unions,
but it is not considering same-sex marriage. There is a case underway in
Massachusetts, and Connecticut is pondering the civil unions issue.

So, this is pretty much a "non-issue" on the agenda of 45 of the 50
states, many of which have either passed laws prohibiting same-sex
marriage or explicitly recognising it as an interpersonal status between
one man and one woman. And even the 5 states that have passed or have
considered legislation concerning same-sex couples have not considered
same-sex marriage, except for the case that's pending appeal in
Massachusetts. So, same-sex marriage is really an "agenda issue" in only
1 state out of 50.

That rather begs the question whether Congress can properly deem this
issue "necessary" for purposes of proposing an amendment to the U.S.
Constitution - as the Constitution itself requires.
*******************************************************************
Micheal T. McLoughlin, D.Jur., M.A. agentq@umich.edu
San Francisco, California Ann Arbor, Michigan
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