State marriage amendments: thumbs down

This November, voters in California, Arizona and Florida will decide on proposals to amend their state constitutions to include permanent bans on same-sex marriage. A new Field poll indicates that California voters are leaning heavily against that state’s Proposition 8 by a 38 to 55 percent margin, almost double the margin by which the measure was failing in July, despite an intensive “pro” campaign by conservative religious forces. A recent Quinnipiac poll in Florida shows the amendment there still in the lead, but not by the 60 percent majority needed to pass a constitutional change under that state’s law. Arizona voters rejected a ballot measure of this sort two years ago, and opponents have high hopes of defeating it again.

I’ve editorialized repeatedly against these measures in this space and will repeat some of what I wrote four years ago:

…To begin with, they’re not just aimed at preventing judicial activism. Were that the case, they would consist of language along the lines of, “Nothing in this constitution shall be construed to require…”, thus tying the hands of judges who might be inclined to pursue creative misreadings on behalf of a right to same-sex marriage. Very strangely, amendment proponents often manage to pose as tribunes of the right to decide the definition of marriage democratically — although the amendments would in fact prevent democratically elected legislatures from getting their way should sentiments shift in the future from those prevailing today.

When (as is usual) these amendments instruct courts to give no effect whatever to various relationships formed lawfully in other states (such as Vermont civil unions), they ensure a train of harsh and unreasonable consequences. In the past, when the validity of marriages has differed from one jurisdiction to the next, courts have often steered a middle course that protected the reasonable expectations of the parties on matters of, say, inheritance or property division, while not permitting them to “import” the unauthorized legal status for general purposes. If courts are required entirely to ignore the set of property rules that a Vermont couple had thought governed their relationship, they will encourage tactical litigation by, e.g., estranged relatives seeking to grab assets after the death of one of the partners in the union.

Finally, some of the amendments go far beyond banning same-sex marriage as such to institute sweeping and vague prohibitions which will likely lead both to injurious results and to much litigation. …

Somewhat relatedly, Initiated Act 1 on the Arkansas ballot would ban unmarried couples of all sorts from adopting or fostering children under any and all circumstances; one may find a preference for married couples in adoption/foster care entirely understandable while also recognizing that ruling out other arrangements will deprive some children of second-best (or even sometimes first-best) solutions.

Please consider working or donating to help defeat these measures: Arizona (more), California, Florida (more), Arkansas. For a somewhat contrasting view — and I’m well aware there’s a wide diversity of opinions among readers here — check out this letter from David Allen of Texas in our old letters section, expressing frustration with the easy acceptance of judicial activism that can short-circuit democratic discussion of these issues.


  • There is nothing “undemocratic” about the people of a state VOTING to change their constitution.

    If times change, the people can vote again.

  • I would agree with SmokeVanThorn, in that amending the constitution is certainly a democratic process.

    I would also, in some sense, agree with Walter that a “nothing in this constitution shall be construed” amendment could achieve the IMMEDIATE result (no judicially mandated SSM) more easily.

    Unfortunately, I just don’t think people think that way – if we are enacting this to prevent SSM (and that’s the way people usually think), then let’s just prevent SSM, eh?

    Actually, I think there are several sex/gender issues that could use some clarification, and that SSM issues could be a byproduct of doing that, but none of that stokes people’s emotions (one way or the other) enough to actually get anything done.

    It’s similar to abortion – the abortion procedure is what gets people fired up (for or against), but the real problem and point of disagreement is defining when “personhood” begins, we just can’t get people fired up about that enough to really deal with it.

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