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From Dateline (May 6, 2004))

Amending the Constitution: What Happens?

President George W. Bush recently announced that he supports a constitutional amendment to outlaw same-sex marriages. But what does amending the Constitution really mean? How does this affect states’ rights? Gordon Bakken, professor of history and an expert on constitutional law, answers some of the most commonly asked questions surrounding this controversy.


Q: What legal issues are at stake if President Bush succeeds in amending the Constitution to outlaw same-sex marriages?

Well, there are two issues here – one is a constitutional amendment. The rules for this are covered in Article V of the Constitution. The other is how the “law of marriage” is defined.


Q: What is Article V?

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.


Q: What is the law of marriage?

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 changes?


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 valid.

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.


Q: When was the last time there was an attempt to amend the Constitution?

In the ’80s, there was an attempt with the Equal Rights Amendment. There was a great deal of controversy surrounding that as well. With gay rights, it is even more politicized.


Q: What happens when states challenge the federal government? It seems like the states would like to retain control.

It’s hard for states to challenge the feds. For instance, when the federal government decided that the national speed limit should be 55 miles per hour, some states balked since states set the speed limits. The federal government simply threatened the withholding of federal highway dollars, and the states caved in. The problem is that all the states feed at the federal trough, so it’s difficult for states to take on the federal government.


Q: So adding an amendment is pretty difficult?

Well, historically, it’s not been easy and I think that’s the point. You want people to fully understand the implications, and amending our Constitution shouldn’t be that easy. It provides the basis of our legal system, and while it must change with the times, these changes should be done in a manner that is thoughtful and intelligent.