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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.


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 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.


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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