Friday, April 15, 2005

Support for the anti-gay marriage ban

Constitutional Amendment to establish marriage as only applying to a union between a man and a woman is a joke. Well, it’s not intended to be a joke. The topic of same-sex marriage is a point that agitates the Conservative and neocon base of the Republican Party. What makes the associated proposed Constitutional Amendment a joke is that it is very poorly worded. It cannot be passed in its current form because of sloppy language that can easily be abused to legalize heinous behavior. It is not intended to actually be passed, and thus the joke.

''Marriage in the United States shall consist only of the union of a man and 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.''

What is a man and a woman?

It says that marriage can only occur between a man and woman. There are several problems with that statement.

  • I’ve said this before; hermaphrodites are both a man and a woman at the same time. Although rare, they create a valid issue. Are we going to tell hermaphrodites who they can and cannot marry simply because nature didn’t make up its mind? You can argue whether gays are born gay. You cannot argue whether a hermaphrodite was born a hermaphrodite.
  • The amendment federalizes marriage. No other national law governs who can marry directly. In the absence of clear instruction, “man and woman” is inherently inclusive of incestuous marriage. The old legal rule is that if the Constitution doesn’t specifically make exclusion, it is interpreted as being allowed.
  • No Federal law, not even the Constitution itself, can act retroactively. Massachusetts has already legalized same-sex marriage. Those same-sex couples already married under Massachusetts law cannot be unmarried by the federal government. Even if the Amendment passes, it could never apply to those couples. This would create a legal mess as States adjust to this one-time only hyper-minority group. In effect, it would provide status of privilege for these individuals which would not be conferred on any other citizen. By extension, such a position of privilege would require equal rights be applied to everyone. Basically, the existence of this group creates a catch-22 that invalidates (one way or another) any limitation placed on same-sex marriage by the Constitution or any federal law.

Domestic Mess

Now I’ll consider the rest of the wording of that proposed Amendment. The first part of the second sentence of the proposed Amendment basically says that States cannot contradict the Amendment. This is redundant, since no law is allowed to contradict any part of the Constitution. However, the next part of the sentence uses sloppy and obscure language to prevent States from giving rights to nonmarried couples. It is a fairly bizarre phrase. It limits rights of individuals within a relationship to just being friends in the legal sense, regardless of the true nature of the relationship. Just stupid. What about common-law? What about shared property? What about the couple’s children? There’s a million “What abouts…” here!

According to the second sentence, no rights of marriage can be given to nonmarried couples, but it makes no provisions for the nature of those relationships. People in nonmarried couples aren’t entitled to seek child support? Nonmarried couples that brake up aren’t allowed to split property as is done with divorce? That second sentence would create a domestic legal mess across the country.

Constitution cannot contradict itself

My third point here is that no law, not even the Constitution itself, is allowed to contract the Constitution. There’s a specific clause in the Constitution that actual says the Constitution cannot contradict itself. The inherent nature of the Constitution makes it unlawful to establish any law that creates a special class of citizen that cannot have the rights granted to other citizens, expect as a means of punishment for crime. This is part of the power behind the 14th Amendment, though not explicitly stated. Any other Amendment that limits the rights of one class of citizen would also have to specially repeal the 14th Amendment in order to be valid itself. The proposed Amendment does not repeal the 14th Amendment, so it is unconstitutional because of its de facto creation of a second class of citizen that does not have the same rights as others.

What a mess!

The proposed Amendment is horribly written. It creates one-time only hyper-minority that have special privileges. It is caught up in a catch-22 that is self defeating and invalidating. It contradicts the 14th Amendment, but does not repeal it, making it unconstitutional. Who wants this thing passed? If the civil rights battle can serve as an indicator, this proposed Amendment (if passed) would ultimately create such a legal mess, it could take half a century to sort out the details, whether enforced, repealed, or found unconstitutional in the courts. The logically conclusion is that it is not intended to pass. It is only used as a tool to rally the Conservative and neocon base of the Republican Party, to sucker more people to giving more support and more money to do more of nothing about the issue. It’s a joke on the true believers and party loyalists. The Amendment is a joke on America.

1 comment:

Mickey Glitter said...

Good post; I would have never read that much into the actual wording of the proposed amendment, but then, I tend to read too much into things that don't matter in the long run. This, though DOES matter in the long run, so thank you for your insight.

And your post got me to read the Fourteenth Amendment, too! =)

Thanks for the link the Pussy Galore blurb, too. It brightened my day!!