Article V reads: “The
Congress, whenever two-thirds of both houses shall deem it
necessary, shall propose amendments to this Constitution,
or, on the application of the legislatures of two-thirds of
the several states, shall call a convention for proposing
amendments...when ratified by the legislatures of three-fourths
of several states, or by conventions in three-fourths thereof,
as the one or the other mode of ratification may be proposed
by the Congress....”
This is right there in the Constitution. It’s telling
you that the Federal Marriage Amendment must be approved by
a two-thirds majority of Congress and then ratified by three-quarters
of the states. It’s going to be a divisive debate.
The law of marriage is continually
developing, at least from a legal perspective. Previously,
when the government has tried to regulate marriage, it has
often been for discriminatory reasons. For instance, it used
to be you couldn’t marry outside of your race. However,
our concepts of morality change over time. And if Congress
can trot out morality as a basis for making amendment changes,
what’s next? That’s obviously a concern.
Laws concerning marriage have been in a constant state of
flux. For instance, look at common-law marriage. It won recognition
in an 1809 court decision and gained notice as one of the
most influential treatises in American law by 1826. Judges
increasingly considered co-habitation based upon personal
acknowledgement, eye-witness accounts and personal reputations
central to determining common-law status. If you look at gay
couples, many do live in what we’d define as common-law
marriages if they were a man and a woman.
||Since standards on morals seem to change,
you’re concerned when they are used to effect Constitutional
Yes. And it rarely works. In another case,
a group motivated by moral outrage also challenged secret
marriages, such as those between people of different “classes.”
The courts, however, ruled that these marriages also were
Morality also was the reason that Comstock laws were put
on state law books to prohibit birth control. [In 1873, Congress
passed the “Comstock Law,” named for Anthony Comstock,
a crusader for his brand of morality.] A moral minority trotted
out their moral beliefs to restrict access to birth control.
Again, they launched a “purity crusade” to restrict
access and thereby deny women control of their bodies. In
1965, the U.S. Supreme Court finally declared such laws unconstitutional.
It would strip from the states
their authority to regulate marriage. Look at prohibition.
The federal government enacted laws that affected states’
rights, based on a “moral opinion.” Whenever a
group trots out morality as a reason for tampering with the
constitution, it limits states’ rights. There is not
a good record of those amend-ments sticking.