I wrote about it a few days ago. The people in Massachusetts want gay marriage, to the tune of about 60%. Barring massive election fraud, there's no way this ban will pass. Massachusetts is slated to become the second state to defeat an anti-SSM ballot initiative.

Yeah, Alon's right. The legislature's voting for the amendment only puts it on the ballot, and there's no way Mass. voters pass a gay marriage ban.

So, not only will Mass. be the only state in which a judge has said that the state constitution allows gay marriage, it will be the first state to have voters say, "Yes, we want gay marriage."

I blogged this on my civil liberties site. There's no way the amendment will pass; it's polling at 30%, and remember that much more conservative Arizona defeated a similar amendment in November.

The real objective of the amendment is to establish that there is a "faithful remnant" in Massachusetts, so as to distance Mitt Romney from same-sex marriage and give him a shot at the Republican primaries.

The amendment could have been proposed in time for 2006; it wasn't, because that wouldn't be long enough. It is no coincidence that the amendment comes to a vote on the very day of the 2008 presidential election.

Cheers,

TH

This is assuming the legislature doesn't find a way to kill it by next January, by the way. Remember that it only got 62 votes support, with 134 votes opposed; it "passed" only because you need a mere 50 votes to get a referendum on the ballot.

As I said in my blog entry, I hope to God someone is taking notes and tries this with a state Equal Rights Amendment, because that might actually pass.

Cheers,

TH

A state Equal Rights Amendment?

We only need three more states to vote for those twenty-four little words make the Constitution. Eight non-ratifying states are FL, IL, LA, MO, NV, NC, OK and SC.

Equality of rights under the law shall not be denied or abridged by the United States or by any State on account of sex.

I think that Vanessa has good reason for concern, and the well-intentioned follow-up comments are so unrealistically sanguine as to be a bit dangerous. "Focus on Family," just one of a hoard of national anti-gay groups, has an annual budget of $150 million. In contrast, HRC, the sole national gay rights political group, has an annual budget of $13 million. Not a typo: HRC's budget is less than 1/10th of FOF's, which is just the tip of the gay-haters' iceberg. Groups like Lambda Legal and GLAD are not political groups but civil rights lawyers, who are also vastly outspent by their right-wing counterparts. The anti-gay right wing is extremely well armed and has come from way behind to win these votes time and again, AZ being the one and only exception, while 40-plus states have passed their anti-gay, anti-family, anti-civil rights legislation. (Sorry that I don't yet know how to link to my data. It's accurate -- I just pulled it off the net via Google. I'm new to the world of online dialogue. HTML? Don't speak that language. Where do they program in useful languages, like Latin?) --Adam

Will women be taken seriously when equal rights are written into the Constitution? More importantly, women aren't taken seriously enough for it to be in the Constitution.

Correction: Online sources put HRC's budget anywhere from $13 million to $30 million. I assume the discrepancy results from creative accounting, but the point is the same whether FOF's budget is 5 times or 10 times larger. --A

donna, I need to brush up on my con law (sadly, I don't get much occasion to battle for civil rights as a business/entertainment litigator), but I'm fairly certain that too much time has lapsed between the original ratification of ERA to become part of the Constitution if eight more states said yes. I mean, if we're gonna get technical, then according to some technically we shouldn't have federal income tax either (some argue that they didn't exactly follow the rules in ratifying the 16th amendment)... so maybe ERA could slip by as well. But, bending the rules aside, I'm fairly certain we'd need to start all over again to get equal rights finally and decisively written into the Constitution (although according to wikipedia, some law students in the 1990s concluded that ratification by three additional states would be enough to make it part of the Constitution, and it's unclear if this is the case or not). Of course, it could be that, twenty years later, we're finally ready (or at least enough of us are) to admit that women deserve equal rights, to write it into the Constitution... we can always hope.

As for the horrendousness going on in Massachusetts, I feel ill. A dear fried of mine in Boston is planning to marry his longtime partner in June of this year. Thankfully this won't affect them -- but now my resolve is strengthened to be certain I make it out there for the nuptials. If things go the way certain people want them to, it might be the only gay marriage ceremony I'm ever able to attend. And that's a tragedy.

And let alone feeling ill -- the thought of Romney running for president has made me lose my appetite completely.

This amendment they're pushing, does it simply ban gay marriage, or does it rescind the article (CVI) that guarantees everyone in the state equal rights under the law (upon which the Supreme Court based its ruling that made Massachusetts the first state to allow gay marriage), or both?

If it doesn't do the second, then they'll have two parts of the constitution that contradict each other---then what happens? Does the latest prevail? Does the original prevail? (In the US constitution, the only amendment specifically contradicting a previous amendment has language specifically about rescinding the previous one which it is undoing.)

Any constitutional law experts out there know of any other instances of one amendment contradicting another, and protocal or precedent for doing so?

The article in question states "All people are born free and equal and have certain natural, essential and unalienable rights; among which may be reckoned the right of enjoying and defending their lives and liberties; that of acquiring, possessing and protecting property; in fine, that of seeking and obtaining their safety and happiness. Equality under the law shall not be denied or abridged because of sex, race, color, creed or national origin." The second part is redundant to the first, IMHO---any law denying someone some fundamental equality would automatically violate the first part, even if they picked something to discriminate by that wasn't mentioned in the second part.

An amendment to ban gay marriage would go against this article, and it seems to me that for an amendment to fly, it would have to remove that first part of that article, and if it doesn't, it seems a bit, well, unconstitutional---any guesses on how a paradox like that would be dealt with? Would they only enforce the first insofar as it doesn't conflict with the new amendment, or would somebody be able to halt enforcement of the new amendment? It'd be like a constitution saying "All people must wear black shirts" having an amendment saying "Certain people must wear red shirts." The constitution would say two different things---which would they listen to? Is there any protocol or precedent in existence to decide which?

It's still possible to ratify the ERA. There just isn't enough interest. I met the lady in Florida who tries to do this every year.

The article in the William and Mary Journal of Women and the Law further reasons that because the Constitution gives Congress the power to amend the Constitution—and indeed the power to alter aspects of the ratification process itself—that if and when three additional states ratify the ERA, Congress has the power to deem the Amendment properly ratified and added to the Constitution. The Library of Congress' Congressional Research Service [4] has issued a report suggesting that this theory is at least worthy of serious consideration.

Pursuant to this legal rationale, ratification efforts have increased dramatically during the last few years. The Illinois House of Representatives as late as May 21, 2003, adopted a resolution ratifying the ERA—proposed in 1972—but the Illinois Senate did not follow the House's lead and that particular resolution died in the General Assembly's upper chamber by the end of 2004. On April 5, 2005, the Arkansas Senate voted 16 yeas, 15 nays and 4 "not voting" on a resolution to approve the ERA, and while that number would ordinarily be sufficient for adoption in many state legislative bodies, under the parliamentary rules of the Arkansas Senate, a resolution of this type requires a majority vote of the total membership—which would have been at least 18 yeas. ERA ratification resolutions were likewise introduced in Florida and Illinois during 2005.

Sandy Oestreich

Just found that the Federal marriage amendment has the second bit: 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, which appears to have the purpose of saying "all the previous equality provisions in the constitution must look the other way and pretend it doesn't step on them." I haven't found the text of the actual Massachusetts amendment, and if it doesn't include something like this, I wonder what happens?

Hi Kyra:

One of the fundamental principles of interpreting the law is that specific provisions supersede more general ones if both are of the same weight. Constitutional law, of course, is "weightier" than statutory law, federal law "weightier" than conflicting state law, etc. So first make sure that you're comparing apples to apples -- and we are here, because we're comparing what would be two state constitutional provisions (assuming the doomsday scenario -- passage of what I'll call the anti-marriage amendment).

The proposed amendment's text is lengthy. One part says, "only the union of one man and one woman shall be valid or recognized as a marriage in Massachusetts." Upshot: A state constitutional provision specifically barring same-sex marriage supersedes a general provision in the same state's constitution that all persons are equal. Moreover, while you and I and probably most readers of this site understand the conflict between saying (a) we're all equal, and (b) we can't all marry the person of our choice, the right-wing has a different view. To understand why they're wrong, start with what they say: "The anti-marriage amendment includes nothing about equality, inequality, gay, or straight," says the right-wing. "It merely protects the traditional family." Sounds reasonable. Too bad it's false. The anti-marriage amendments protect nothing. They only destroy. Those of us in same-sex couples say to the right-wing, "God Bless your families with eternal happiness and long life. But why do you destroy our families, and call that protecting yours? Why do you deprive our children of the protections of having two legally married parents, protections that can save children's lives?" They have no answers to these questions, not even false ones.

So without answering the questions, they tell another lie. "Gay people," they say, "have equality in marriage. Gay, straight, all can marry someone of the opposite sex." This is the same illogic used to justify prohibitions on interracial marriages, which at the time was also packaged as religion. "All people are equal. Each may marry an opposite-sex person of their own race. Racial mixing is not natural. It's not the way God made us. Almighty kept the races separate for a reason. The reason is that they should be kept separate. He said, 'Thou shalt not mix.' I don't know where, but He said it. What's wrong with you liberals? Are you stupid? You can't see right in front of you that there are different races? God did that. That's how God wants it." Wait, are those the arguments that the right-wing used to make against interracial marriage, or are those the arguments that they make now about same-sex marriage? Right.

The US Supreme Court ruled in Loving v. Virginia that laws against interracial marriage were unconstitutional because they restricted who one could marry based on race. Tough call. Likewise, the anti-marriage amendment in Mass. (and those in 40+ other states, some statutory, some state constitutional) would restrict who one may marry based on sex. Critical point: at its root, sexual orientation discrimination is sex discrimination. No, I don't mean they're similar. They are one and the same. A man can marry a woman, but a woman can't marry a woman. Sex discrimination? Sexual orientation discrimination? Right.

Great post, LoneLawyer, though I could not disagree more with your post above it about the referendum's viability. Oh, I'm not saying we shouldn't actively, aggressively fight it--but I am saying that regardless of what happens, the odds that it will pass are exceedingly slim. This is not a battle between the AFA and HRC. If it were, same-sex marriage would never have been legal in Massachusetts to begin with.

As I wrote in my blog entry:

I don't believe that it stands any reasonable chance of passing, but it could. Bad and oppressive laws, once proposed, always stand some chance of passing. That has been the right-wing social agenda for many years--on abortion, on gay marriage, on flag burning, and any number of other topics--and it will probably remain the right-wing social agenda for many years to come. What we must do, as civil libertarians, is resist the urge to allow right-wing aggressiveness to create in us a fear-based, anger-based movement. We have ample opportunity to propose aggressive new policies of our own. We should take full advantage of it.

I would add also that in Loving v. Virginia, a variation of the "either can marry a member of the opposite sex" argument was used--Virginia arguing that the law was not discriminatory because both blacks and whites were allowed to marry someone of the same race.

A consistent interpretation of Loving, or a consistent interpretation of the Fourteenth Amendment at all for that matter, would mandate marriage equality federally and in all 50 states. Our problem is that we have a timid Supreme Court that is not entirely committed to upholding the law.

Cheers,

TH

Re the ERA: That's interesting, Donna. I've heard the theory before, but never put too much stock in it--but I'd like to at least see it tested, as that would be if nothing else a symbolic indication that the ERA, if proposed again, could very well pass.

I do not understand the traditional emphasis on Florida, though. I always think of Florida as being practically a red state. Illinois would seem to me to be a more likely candidate to tip the scales. Is there something I don't know about the two states' legislative makeup?

And I agree that our failure to pass the ERA is a national disgrace. We mandated one in Afghanistan (not that it's being enforced), but we won't put one in our own Constitution? Ridiculous. And very telling.

But I do wonder why Massachusetts legislators have not thought to propose a state ERA to go to the ballot alongside that damned anti-gay marriage referendum. Most discrimination on the basis of sex occurs at a state level anyway; not that this should satisfy us, but the ERA has been essentially a dead issue in mainstream politics for 25 years, and this seems to me to be a great way to resurrect it.

Cheers,

TH

It's a matter of interest, Tom. TLF is right in saying each state (and workplace) has laws against discrimination by sex, race, disability, etc. But I feel demoralized every time I hear the ERA didn't pass in the 1970s as if it's a judgment on the women's movement of the 70s or the entire Second Wave. Sandy O is one of those indefatigable, single-minded women who keep plugging away at injustices. I would like it in the US Constitution.