Bill Information: Constitutional amendment defining marriage

[rightcoast]

I'm not a expert on law. I'm very, very far from it. I'm just an average Freeper who tries to keep on top of Congress and proposed legislation.

Sometimes it's hard to decipher the real "nuts and bolts" of a bill, and to get past the spin and rhetoric you're likely to read about in the newspaper or to watch on TV. Here's a small attempt to bring some clarity and definition to a bill making its way through Congress.

108th Congress, U.S. House & U.S. Senate (joint resolution)
108 H.J. Res. 56; 108 S.J. Res. 26
A JOINT RESOLUTION PROPOSING AN AMENDMENT TO THE CONSTITUTION OF THE UNITED STATES RELATING TO MARRIAGE

"...[T]he following article is proposed as an amendment to the Constitution of the United States, which shall be valid to all intents and purposes as part of the Constitution when ratified by the legislatures of three-fourths of the several States within seven years after the date of its submission for ratification."

This sets the expiration of this proposed amendment's ratification period to be 7 years past the date of its passing both houses of Congress.

"Marriage in the United States shall consist only of the union of a man and a woman. Neither this Constitution or the constitution of any State, nor state or federal law, shall be construed to require that marital status or the legal incidents thereof be conferred upon unmarried couples or groups."

The main difference between this law and the proposed Marriage Protection Act (which would deny court jurisdiction over the Defense of Marriage Act's provisions) is that the amendment would prevent any state from recognizing same-sex marriages. The Marriage Protection Act, instead, would limit its scope to preventing a state's same-sex marriage law to be accepted by another state.

Another interesting portion of this proposed amendment is the inclusion of the text, "or the legal incidents thereof". This would seem to imply that de-facto marriage by a state under another name (e.g. civil unions) would not be allowed, since it would be construing the law to infer the "legal incidents" of marriage to a non-married couple.

I am not a legal scholar, so my reading of this text could be flawed. Part of it depends on the legal meaning of "construed." I see no text here explicitly denying the right of a State legislature to pass a civil union law (or something like it). What I mean is that there isn't any text like this: "No State shall make any law granting the rights or legal status of marriage to anything but one man and one woman." Absence of this text is confusing me somewhat, since I'm not sure how to read "construed to require". I'd appreciate any input.

[writer33]

We have a lot of law FReepers. You need one of them to step up to the plate on this one.

[DonQ]

This proposed amendment is badly written (not just my opinion, but that flaming liberal James J. Kilpatrick). It will not only stop same-sex marriage but prevent any future legal recognition of polygamous marriages such as occur in the Moslem world and among Fundamentalist Mormons.

As an example of poor drafting, it says "a man and a woman" - not "only one man and only one woman" - which might raise an argument under the very old canon of legislative construction that the singular includes the plural and vice versa that "a man and a woman" really means "at least one man and at least one woman". It sounds silly but it is within the realm of possibility.

One legal question that already has arisen under existing law involves how does the law identify a man or a woman -- there have been instances of someone changing his/her sex, going through surgery and hormones and the whole nine yards and even getting a revised birth certificate and other official documents to identify with their new gender, but their marriage was subsequently nullified (at least a couple of times after many years of apparently normal marriage, after the spouse had died, in a lawsuit brought by other heirs) because the court insisted on classifying them according to their original gender not their current gender.

The adoption of this amendment would raise questions under other Constitutional provisions, such as the impairment of contracts, and the full faith & credit clause. If adopted, this would be the only amendment to the Bill of Rights that actually denies a right currently allowed in some European countries and in parts of the US. Well, the only amendment in force, remembering the 12 year career of the 18th amendment (Prohibition) - and wasn't that a resounding success.

[longtermmemmory]

no the amendment is quite clear. On the federal level it is crystal clear that marriage is one man and one woman. period. Anything else is sent to the states, period.

crystal .

Amendments
First Amendment - Religion and Expression
Second Amendment - Bearing Arms
Third Amendment - Quartering Soldiers
Fourth Amendment - Search and Seizure
Fifth Amendment - Rights of Persons
Sixth Amendment - Rights of Accused in Criminal Prosecutions
Seventh Amendment - Civil Trials
Eighth Amendment - Further Guarantees in Criminal Cases
Ninth Amendment - Unenumerated Rights
Tenth Amendment - Reserved Powers
Eleventh Amendment - Suits Against States
Twelfth Amendment - Election of President
Thirteenth Amendment - Slavery and Involuntary Servitude
Fourteenth Amendment - Rights Guaranteed, Privileges and Immunities of Citizenship, Due Process and Equal Protection
Fifteenth Amendment - Rights of Citizens to Vote
Sixteenth Amendment - Income Tax
Seventeenth Amendment - Popular Election of Senators
Eighteenth Amendment - Prohibition of Intoxicating Liquors
Nineteenth Amendment - Woman's Suffrage Rights
Twentieth Amendment - Commencement of the Terms of the President, Vice President and Members of Congress.
Twenty-First Amendment - Repeal of the Eighteenth Amendment
Twenty-Second Amendment - Presidential Tenure
Twenty-Third Amendment - Presidential Electors for the District of Columbia
Twenty-Fourth Amendment - Abolition of the Poll Tax Qualification in Federal Elections
Twenty-Fifth Amendment - Presidential Vacancy, Disability, and Inability
Twenty-Sixth Amendment - Reduction of Voting Age Qualification
Twenty-Seventh Amendment - Congressional Pay Limitation

[Congressman Billybob]

J, Armor, Esq., Billybob's able assistant, checking in for duty, sir.

This amendment would deny the civil attributes "of marriage" to homosexual couples, and to groups of three or more regardless of their sexual orientation. (To look down the road a bit, it would also deny those benefits to inter-species couples, etc.)

I am a lawyer whose practice is limited (currently) solely to the US Supreme Court. I am also the last survivor of an original family of five. So I've seen much more of the law of inheritence than I care to. But that goes to the "civil union" issue.

In American law for three centuries, in in Britain for centuries before that, the law has allowed individuals with no marital relationship to one another to provide for guaranteed inheritence. It is called "joint and several ownership." It can be provided for real property, for bank accounts, for stock certificates, etc.

The problems of visiting people in hospitals, etc., can all be likewise solved by state laws. That's what "civil unions" would do, in any state choosing to establish them. Similar laws have, for centuries, existed in states, and differec among the states. That would continue.

All that this amendment does is to take marriage itself off the table. It would prevent outlaw judges (as in Massachusetts) and outlaw local officials (as in San Francisco) from playing games with the centuries-old definition of "marriage." No more, no less.

Does that help make things clear?

Congressman Billybob

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