Don Sherfick

State Constitutional Amendments on Same-Sex Marriage/Civil Unions: The POTUS and A Primer Part IV

Filed By Don Sherfick | September 04, 2007 9:00 AM | comments

Filed in: Marriage Equality, Politics, Politics
Tags: constitutional amendment, federal marriage amendment, FMA, marriage, New Jersey, same-sex marriage, SJR7

On Monday of last week in the third post of my current discussion of marriage and civil unions, and what aspirants to be President of the United States are saying/can do with respect to them I went into some detail about why and the proposed Federal Marriage Amendment (FMA) came to be written, and how and why its sponsors changed it in 2004. The first two posts concerning marriage in the United States and its basis in state law may be found here and here.

I took a little detour concerning the 2004 FMA change because it has a direct impact on what's going on in Indiana concerning its own proposed state constitutional amendment, known as SJR7. In a nutshell, in copying the FMA almost verbatim, the Hoosier proponents chose to stay with the earlier version, which FMA co-drafter Judge Robert Bork called "poorly drafted". They still are clamming up on why, but it leads to the suspicion that their claims that SJR7 would still let the General Assembly pass civil union and similar laws are bogus. For a little more on that, and how Indiana Republican lawmakers may have been mislead, take a look here.
I'll be revisiting the Indiana scene again soon, but now I'll continue with the Federal Marriage Amendment and the on to state constitutional amendments concerning same-sex marriage and civil unions. Deep breath.....jump now.

The only other thing I'll say at this point concerning the Federal Marriage Amendment is that even as changed in 2004, the measure has failed to pass by the required 2/3 vote in either house of Congress. Not even close, and in some cases not even garnering a simple majority. The last unsuccessful attempt was in 2006. With the Democrats in control of both houses of Congress currently, whether or not the measure will even be brought up again in the current two-year session seem highly unlikely. But most think it will continue to be a "wedge issue" as the November 2008 Presidential election approaches.

Meanwhile, the battle over same-sex marriage has moved to the states through the process of constitutional amendments. I won't take up a lot of space giving details as to numbers, etc., but this Wikopedia item on the subject has a lot of information, including the text of each one in states that have adopted measures in this area.

These amendments fall into four broad categories. The first, only in Hawaii, merely says that only the legislature has the authority to define marriage other than as a union between one man and one woman. As I mentioned in an earlier item, passage of this amendment there effectively ended the ability of the Hawaii state courts to find marriage equality in the state constitution's equal protection clause.

The second type, enacted in 8 states, simply bans same-sex marriage by defining marriage as the union of one man and one woman. There is no specific mention of civil unions or similar marriage-like institutions. So it would seem that the door has been left open for the legislatures of these states to enact related laws. It seems to me that courts in these state could still (like in Vermont and now New Jersey) require that rights and benefits of marriage must be given to same-sex couples, though not using the "M" word, but that's beyond the scope of this discussion.

The third type, adopted in 16 states, has language which bans both same-sex marriage and civil unions. The language used varies widely, but the common thread is reflected in Ohio's amendment, which bars the creation or recognition of a "legal status for unmarried individuals that intends to approximate the design, qualities, significance or effect of marriage." (The Wikopedia article lists 17 in this category, including Oklahoma, which I will address a bit more because of its similarity to the Federal Marriage Amendment.)

The last type, adopted in Virginia, is by far the most restrictive, not only banning same sex marriage and civil unions, but seeming to rule out even contracts between two unmarried individuals that could achieve at least some of the legal benefits of civil unions.

(Oklahoma's amendment is a somewhat special case, because unlike 16 other states in the second category (specifically barring both same sex marriage and civil unions), it does not use any term like civil union, but is taken almost word for word from the ORIGINAL version of the Federal Marriage Amendment. This is essentially the same language which has been proposed in Indiana. Proponents of Indiana's measure like to point to the Oklahoma amendment as having spawned no litigation, and so seek to assure Hoosier lawmakers that there won't be any problem in Indiana, either. That's a faulty premise which I'll take up later outside of this series.)

So, that's the current scorecard concerning state constitutional amendments that have been enacted. Several more, including SJR7 in Indiana, are currently being debated.

To paint a complete picture of same-sex marriage and civil unions as it relates to the various states I probably should have made detailed mention of the states, such as Vermont and New Jersey which have no such amendments and now have civil union legislation on the books. And of course Massachusetts by court decision has full marriage equality within its borders. In most other states not already having constitutional amendments in place, there are statutes defining marriage as only a heterosexual institution. But I hope that what I've written so far should provide a reasonably complete background on the overall national picture to lay the foundation of a discussion of civil unions themselves, and why the statements of POTUS hopefuls concerning them leave a lot unsaid.

That's for next time.



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