Balkinization  

Saturday, January 24, 2004

JB

Could the Federal Marriage Amendment Pass?

Eugene Volokh has been concerned that the Federal Marriage Amendment, which I've discussed in a previous post, has a decent shot at passage. I don't think there is a very good chance at all. Let me explain why.

Article V was designed to make it very difficult to amend the Constitution. If you compare the number of bills that have become federal law (endless) with the number of amendments that have been enacted (27, and some would say only 26), you will see that the requirement of a two thirds majority of both Houses of Congress plus three quarters of the states makes a big difference. Note as well that 10 of the 27 amendments were virtually contemporaneous with ratification and were part of the price of ratification. Three more were the result of a Civil War. So if you take those thirteen away, you get only 14 amendments during periods of relatively normal politics in 216 years of the Constitution's history. Most constitutional change has occurred through Article III, not Article V. One reason why courts make constitutional law in the way that they do is because our Constitution is so difficult to amend. Judicial review (as we have it today, not as it was originally imagined) is an institutional alternative to Article V amendment.

But I digress. The requirement of two thirds plus three fourths is even more stringent than it first looks. For an amendment can fail if one third plus one of either the Senators or Congressmen oppose it. It can also fail if one house of the state legislature in 13 states fails to ratify. Nebraska has a unicameral legislature-- all the rest of the States require the concurrence of both the House and the Senate in order to ratify. Thus, counting Nebraska, there are 99 state legislative houses. (49 x 2 plus 1). If only 13 of these houses (in 13 separate states) fail to ratify, the amendment fails.

When you put it this way, it's a wonder that any constitutional amendments ever pass at all. Because of the many veto points in the amendment process, it takes overwhelming public support for an amendment before it can be ratified. So even if we see polls showing that 55 percent of Americans are opposed to gay marriage, that does not necessarily translate into two thirds support in both the House and the Senate. And it certainly does not mean that there will not be 13 states where one or the other house does not support the proposed amendment. I would wager that for the FMA to pass, there would have to be 70 to 80 percent support in public opinion polls. I don't think there is that degree of support.

There is one final consideration that I think strongly suggests that the FMA will never be ratified: Mores change over time. Although court decisions protecting homosexual rights usually produce temporary spikes of opposition, the long term trend is toward increasing acceptance of homosexuality in the United States. As time goes on, public discomfort with the idea of same-sex marriage will almost certainly decrease, and support for the amendment will become increasingly lukewarm. Moreover, although there are exceptions, the younger the age cohort polled, the more tolerant the group is toward homosexuality. As older people die off and are replaced with socially more tolerant ones, the trend toward acceptance is likely to increase. That means that time to pass something like the FMA is now. The longer the proponents wait, the fewer Americans will think it is a good idea.

All this could change if the Supreme Court of the United States were to hold that the U.S. Constitution requires that states must award marriage licenses to same sex couples. But that is not going to happen anytime soon. Instead, my prediction is that the question of same-sex marriage will be worked out at the state level for years to come.



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