Marriage Amendment: We don't need Senate approval

Forty-five states — fully 90 percent of the United States — have enacted legislation or amended state constitutions to ensure that marriage is defined only as the union of one man and one woman.

In spite of this overwhelming national consensus, the U.S. Senate recently rejected the federal Marriage Protection Amendment, falling far short of the two-thirds supermajority required to amend the Constitution. The vote was 49 to 48, eighteen votes short of passage and light-years short of accurately reflecting the will of the American public on this issue

I think it’s time to do an end run on our out of touch senators. The framers of the Constitution wisely recognized that an alternative process to amend the Constitution might be necessary in order to bypass an unresponsive Senate. Specifically, the Constitution states that a two-thirds vote in the Senate can initiate an amendment, “or, on the application of the legislatures of two thirds of the several states, shall call a convention for proposing amendments…”

Thus if thirty-four states support a constitutional amendment, the Senate is obligated to call a convention in which the amendment would be approved by convention delegates, essentially bypassing the Senate in the process.

Could a federal defense of marriage amendment garner the support of thirty-four states? Yes, it’s not only possible, it’s highly likely. It might not be a slam-dunk but it’s certainly a high percentage shot.

To me, this amendment process looks like a cakewalk when compared to the nearly impossible task of converting or replacing eighteen senators.

A constitutional convention is certainly NOT the conservative approach here. It is likely that the constitution would be gravely, if not mortally, wounded in the process.

I doubt that it will take the replacement of 18 senators to get this amendment out of the Senate. If you look at the rationales that have been offered by various Senators for their votes, it seems that all it will take to change their votes is a successful court challenge of the federal DOMA. Since DOMA is pretty clearly unconstitutional, I don't think we have long to wait for that.

>>Any amendments proposed by a convention still have to be ratified by 3/4'ths of the states. It's not a slam dunk that anything a convention drafts will be ratified.

Actually, I don't think that is clear. There has not been one since the first convention, and there was no question of its proposals being ratified, they had to be adopted. Since the convention is itself established by the states, there is a case for saying that, unlike proposals from Congress these would not need ratification by the states. There is simply no precedent, and I have no doubt the Supreme Court would ultimately have to rule on the status and powers of the convention.

What scares me is the thought of what a group of today's politicians would put into a constitution if starting from scratch (as is often proposed in the UK, where we do not have a written constitution). I fear that a "right" to things like education and healthcare would be in there.

Actually, I don't think that is clear. There has not been one since the first convention, and there was no question of its proposals being ratified, they had to be adopted. Since the convention is itself established by the states, there is a case for saying that, unlike proposals from Congress these would not need ratification by the states

There are two methods of proposing constitutional amendments and two methods for ratification. Congress can propose them with 2/3'ths vote in both the House and the Senate. The legislatures of 2/3'rds of the states can call for a constitutional convention which could draft amendments. Three-Fourths of the states can ratify amendments by a vote in their legislatures. Also 3/4'ths of the states can ratify by state constitutional conventions.

Only once has a constitutional amendment been ratified by state constitutional conventions. That was in 1933 with the 21'st amendment to repeal prohibition. Many state legislatures passed resolutions making a state-wide referendum to be a state constitutional convention.

Article V.
The Congress, whenever two thirds of both Houses shall deem it necessary, shall propose Amendments to this Constitution, or, on the Application of the Legislatures of two thirds of the several States, shall call a Convention for proposing Amendments, which, in either Case, 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, or by Conventions in three fourths thereof, as the one or the other Mode of Ratification may be proposed by the Congress; Provided that no Amendment which may be made prior to the Year One thousand eight hundred and eight shall in any Manner affect the first and fourth Clauses in the Ninth Section of the first Article; and that no State, without its Consent, shall be deprived of its equal Suffrage in the Senate.

Excuse me, but I'd much rather have an amendment that returns the conferring of marriage to the churches. All the state constitutional amendments, and the proposed federal amendment just continue to government grab of religious rites once the sole domain of churches. Government should be limited to recording marriages when the married couple volunteers the information.

Show me one state constitutional amendment that truthfully addresses same-sex marriage. As with the proposed federal amendment they leave open marriage of trans-gendered (sex change operations) for any number of court interpretations.

And none, not one seeks to protect marriage from punitive taxing as was done for many years. Why even bother calling these amendments marriage protection?

The real effect of these actions is to further undermine the influence of religion in our nation by demonstrating it is the government people should turn to when moral issues arise. It's the continuation of the "progressive thinking" of the late eighteenth and early nineteenth century. In their own ways, both the Democrats and the Republicans are further distancing religious morality and supplanting it with a new religion, a religion of government.

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