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The
28th Amendment
March
9, 2004
By Bob Volpitto
Recently George W. Bush announced from the Oval Office he
is "troubled" by gay and lesbian marriages performed by civil
authorities in California, New York, Oregon, New Mexico and
in other states. (Massachusetts will join them in May.) As
is his wont, Bush failed to explain what he means by "troubled."
He expected this statement would satisfy the religious right
of his party. It didn't.
The ultra-radical right-wing wanted more than a verbal concern;
it demanded action in the form of a Constitutional amendment
defining marriage as a legal, spiritual and physical union
between a man and woman. In effect this would ban "same sex"
nuptials.
Apparently Bush and his cohorts on the radical right are
blinded by the difficulties to amend the 200-year-old document
that has been modified a scant 27 times since adoption. No
doubt the ghost of the late Senator Sam Ervin, once America's
greatest Constitutional scholar, is having a good laugh at
Bush's expense.
THE PROCEDURE
There are two ways to amend the Constitution. The first,
and the only one employed thus far, is for an amendment to
be put before either house of Congress. If it originates in
the Senate, the amendment must pass by a favorable vote of
two-thirds of the membership or 67 votes yea. Pennsylvania
Senator Rick Santorum is Bush's point man in the upper house
who has this awesome task. Should the amendment originate
in the House, 229 members, or two-thirds, must vote in favor.
Regardless of the house of origination, both must concur with
a favorable two- thirds vote.
The second means is for two-thirds of the states to call
a constitutional convention to revamp the entire document.
This method has never been used and, in the opinion of most
scholars, there is hope it never will considering the chaos
that would result.
In either case the president and the Supreme Court have
no direct roles in the amendment process.
If the proposed amendment passes these two hurdles, it is
then sent to the state legislatures where it must be voted
favorably upon by three-fourths of those bodies, or 38, before
it can become part of the Constitution. Congress usually places
a time limit of seven years on the states for either ratification
or rejection.
A recent Newsweek poll showed that Dubya's chances
of getting his amendment passed are around 2-1 against. Another
poll indicates that voters are divided approximately 50-50,
with about half in favor and half against such an amendment.
During each Congressional session several Constitutional
amendments are presented for consideration. Here are a few
of the most recent:
To guarantee the word God is in the Pledge of Allegiance
and national motto,
To repeal the 8th Amendment (Cruel and Unusual Punishment)
and substitute wording prohibiting incarceration for minor
traffic offenses,
To specify "equal high quality" health care as a right,
To require a balanced budget,
To declare that life begins at conception,
To force a national referendum for deficit spending,
To require reconfirmation of federal judges every six years,
To repeal the 16th amendment (thus nullifying the federal
income tax),
To set term limits for Senators and Congresspersons,
To provide for recall of Senators and Congresspersons,
To repeal laws by popular vote,
To prohibit abortion,
To disallow desecration of the U. S. flag,
To expand the term of House members to four years,
To provide for direct election of President and Vice President,
To make English the official language,
To reduce the voting age from 18 to 16 and
To provide equal rights for men and women.
JUST SUPPOSE ...
Just suppose the right-wing got its amendment defining marriage
into the Constitution, what would the ramifications be? Like
the 18th Amendment that prohibited the manufacture, importation,
distribution and sale of beverages with an alcoholic content
over a certain percentage, enabling legislation like the Volsted
Act in the case of prohibition would have to be enacted.
The enabling statute would annul the same sex matrimonial
bond simply because it was illegally performed. Would this
annulment be retroactive? Would it apply only to marriages
performed after the amendment became part of the Constitution?
What about penalties? Perhaps both partners would be fined
$100,000. One would be incarcerated in a federal lock up and
the other banned to the Marshall Islands. Adopted children
would be sent to a Newt Gingrich-type orphanage and put up
for adoption after being re-educated about the evils of homosexuality
and same-sex marriage. Homosexual couples would be forced
back into the closet, with every fearful day and anxious night
spent worrying if a neighbor or relative will expose their
orientation to the thought police.
"Now," you say, "he's getting silly." And I am. But so is
this tempest in a teapot. Consider the relatively small percentage
of gay marriages compared to straight couples tying the knot.
An assumption that does not require statistical proof. I have
yet to hear of gays getting a divorce and yet half of all
straight marriages are dissolved by judges after months of
wrangling between competing lawyers who get a greater share
of the couple's assets than the litigants. Gays and Lesbians
seem to have a live and let live philosophy.
Gay and lesbian couples have been living together for centuries
with no harm to society. Why the big fuss now when they want
to formalize their relationship? It all comes down to rights:
property rights, health insurance rights, tax benefits, inheritance
rights and other rights enjoyed by straight couples. Why should
this small percentage of the population, another minority,
be denied rights had by the majority merely because they are
stigmatized as being "different"?
Personally I think there are greater social ills. What are
we doing about heterosexual couples living together without
the benefit of marriage? In many instances children are born,
as we old-timers used to say, "out of wedlock" and then abandoned
by either mother or father. Often these couples have shared
assets which one of them will literally steal from the other
and disappear. There have been too many cases where a former
girlfriend or boyfriend murders a past live-in during a fit
of jealousy. There are also too many cases where children
suffer for lack of a father in the home or where they have
been abandoned by their mother. In these areas of relationships
are where our attention should be focused. Here we have crimes
with victims. Let's not legislate more crimes without victims.
TRADITION
There are those who say that same-sex marriages are a violation
of tradition. Do you remember the ramifications when a black
boy danced with a white girl? Tradition was that she would
be chastised by her parents. She and her family would be shunned
by friends, neighbors and relatives. The young lady would
be sent to live with a maiden aunt residing alone on an isolated
ranch in Wyoming and the young man was hustled out of town
one step ahead of a lynch mob.
The tradition of slavery in America was ended in 1863. The
tradition of interracial marriages ended in 1967. The tradition
that demands Jewish brides have their heads shaved and require
them to wear a wig instead of their natural hair is almost
an anachronism. The traditional foot binding of oriental girls
is fading although there is a tribe in Africa where the groom
smashes his fist into his bride's mouth hard enough to knock
out her front teeth to seal the wedding vows. Tradition is
far from sacred, although it is difficult to explain this
to some people.
Granted, Dubya has pandered to his right-wing in supporting
the latest amendment to the Constitution. He fails to understand
that a constitution is a document that defines how a government
functions. It does not dictate moral behavior. It may guarantee
rights but it should not be one to deny them.
In his action, George Bush demonstrated again he has no
policies only blind ambition to hold onto a job he got by
dubious means. Perhaps this will change on November 2.
Bob Volpitto is a former weekly newspaper owner-publisher
living in the Southwest. He calls himself a Liberal and is
damn proud of it.
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