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Gay Marriage Amendment Fast Facts

Attorney Andrew Cohen analyzes legal issues for CBS News and

Although President Bush has endorsed it and polls show that a slim majority of Americans favor it, there is no guarantee that an amendment banning gay marriage ever will be added to the text of the Constitution. And, even if that does happen, it almost certainly will happen long after the current President has retired back to his ranch in Texas.

Those are answers to two of the more popular questions asked in the wake of the news Tuesday that the nation's chief executive wouldn't mind seeing the nation's legislators (federal and state) add some language to the Constitution that would limit who may marry whom in America. But there are plenty of other questions that haven't been asked and answered. So, in the spirit of giving you more information than you even know you want to have, here are eight more questions and answers surrounding the nascent debate over this particular effort to amend the constitution.

  • 1. What happens now in Congress?

  • Good question. First, Congress has to decide whether it wants to even take up the issue. When President Bush first made his pronouncement Tuesday, I expected conservative pols in Washington to fall all over themselves pledging to push through the fairly popular amendment as soon as possible. But, judging from the initial reaction, not all Republicans are eager or willing to amend the Constitution for an issue that hasn't been fully vetted by the courts, including the Supreme Court. Also, some conservatives, and many Democrats, see a states-rights problem with shoving a federal mandate down the throats of local officials. In other words, the congressional reaction to the notion of the amendment was far more reserved than I suspect most observers thought it would be.

  • 2. Aside from pure party politics, what are the potential pitfalls for the proposed amendment at the Congressional level?

  • In a word: language. Already, some folks on both sides of the aisle are expressing concern that the Musgrave Amendment, named after the Colorado representative who authored it, may not simply ban gay marriage but may also outlaw civil unions. I don't think there is any way the amendment will pass if reasonable legal minds believe it bans same-sex couples from getting certain benefits; even the President seems to support the concept of civil unions. So there is going to be a lot of cussin' and discussing over precisely what the text of the amendment ought to look like and the more unambiguous the language is the more likely it will be to generate opposition (politicians love ambiguous laws, remember, which is why lawyers make so much money by keeping so busy).

  • 3. Pretend that Congress passes the amendment by the requisite votes, what next?

  • Once the amendment passes through Congress it goes to the states. Lately, when given the opportunity, Congress has been putting time limits on the proposed amendments it sends to the states. Incidentally, this is one of the better ideas Congress ever has had -- there are amendments that made it through Congress long ago but which have been floating around the ether of the Constitution for hundreds of years. Once the issue goes to the states, the legislatures in three-quarters of them must approve the precise language of the proposed amendment. That language issue is an important one because, right now, many gay marriage bans at the state level are worded differently. So there is no guarantee that the actual language of the amendment will be simply rubber-stamped from state to state.

  • 4. What kinds of amendments are floating out there?

  • There are several but the most astonishing is an amendment from 1861 that would have prohibited Congress from interfering with slavery. "No amendment shall be made to the Constitution which will authorize or give to Congress the power to abolish or interfere, within any State, with the domestic institutions thereof, including that of persons held to labor or service by the laws of said State." Two states passed that amendment, apparently, but there was never a time limit placed upon it so it is still alive. Among the more recent amendments that didn't make the cut were the Equal Rights Amendment, sent to the states in 1972 and expired in 1982, and the Washington D.C. voting rights amendment, proposed in 1978 and expired in 1985.

  • 5. How rare is it for Congress to take up a constitutional amendment?

  • It is rare for Congress to get serious about a constitutional amendments but they get proposed all the time. Balanced budgets, presidential pardons, cruel and unusual punishment, child pornography, legislative salaries, the Pledge of Allegiance -- you name a hot-button issue that has arisen over the past few years and it is likely that some representative from some district somewhere has tried to create a constitutional amendment about it. Fortunately for us, and for a sense of certainty, the drafters of the Constitution made it very difficult for an amendment to be added to the document -- in other words, cooler heads usually prevail.

  • 6. What will happen with the gay marriage fight in California while the amendment process goes forward?

  • Nothing and everything. The legal battle in California will resolve itself of its own accord based upon existing state law. Either the equal protection clause of the California constitution trumps that state's ban against same-sex marriage or it doesn't. But if the amendment process doesn't affect the fight in California, the fight in California may affect the amendment process. Can you imagine the political pressure that will be brought to bear if and when the California Supreme Court follows Massachusetts and declares that same-sex marriages are valid in that huge state? Think of the fight over gay marriage as two trains (the judicial train and the amendment train) going down parallel tracks. If the courts conclude that states are not required to recognize gay marriages, the tracks will never intersect. But if the courts conclude that gay marriage bans are discriminatory, the trains will collide at some point down the track.

  • 7. What happens if the amendment passes both houses of Congress and at the state level? Would the Supreme Court then be in a position to evaluate its constitutionality?

  • That's actually two questions but I'll still answer it. I don't think so. If that were to happen, the courts would be able to interpret the new amendment in the context of future legal challenges but could not be able to invalidate the amendment itself. So, theoretically, you could have one amendment (this proposed one) which reasonably contradicts two other amendments (the 5th and 14th amendments) which guarantee equal protection of law. In that case, the Supreme Court only could try to reconcile those seemingly irreconcilable legal landmarks -- the Justices could not void them. That's why an amendment is such a big deal -- it creates new law that is virtually unassailable by the courts (the whole point of this venture, many conservatives say).

  • 8. What about the federal Defense of Marriage act?

  • What about it? Don't better the "over" on its longevity. Clearly, the White House and supporters of a marriage amendment aren't confident that the federal law, signed by President Clinton, will withstand judicial scrutiny if and when that scrutiny comes. The Defense of Marriage Act defines marriage as a legal union between one man as one woman under federal law. It also permits the states to refuse to recognize each other's marriage laws (a provision that may violate the Constitution's "full faith and credit" clause) but it doesn't stop any individual state from recognizing gay marriage, which is what Massachusetts did and what California is contemplating. The federal statute is susceptible to judicial review -- and based upon the Supreme Court's sodomy ruling last June that review might not be kind. The amendment, as I mentioned above, would generally be free from such review.

    By Andrew Cohen