Tag Archives: marriage equality

CA: Amendment vs. Proposition

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Whether or not the California Supreme Court rules in favor of same-sex marriage equality today, Californians will probably be voting this fall on a constitutional amendment to ban same-sex couples’ marriages. Apparently, 1.1 million signatures have been submitted, and only 694,354 need to be found valid in order for the amendment to get on the ballot — about 63% of those submitted.

What I don’t understand is why it’s so easy for Californians to amend their constitution. It merely requires a one-time majority vote by the public — the state legislature has no involvement. The process is exactly the same as for a ballot proposition, except that a ballot proposition requires signatures from 5% of the number of voters in the last gubernatorial election in order to get on the ballot and can be found unconstitutional, while a proposed constitutional amendment requires 8% to get on the ballot and becomes part of the state constitution and therefore by definition cannot be unconstitutional — although whether it violates the U.S. Constitution is another matter.

Under traditional ideas of constitutional theory, this is bad. Amending a constitution is supposed to be harder than passing an ordinary law because constitutional law is supposed to be “higher” than ordinary law. If you can simply amend the constitution by popular vote, what’s the point of having a constitution?

This is particularly troublesome when it comes to individual rights. One of the purposes of a constitution is to protect individual rights from being taken away by a majority. If a majority of Californians can remove a minority’s individual rights through simple popular vote, something is really wrong.

In 2000, a majority of Californians voted in favor of a ballot proposition to ban same-sex marriage. Had it been a constitutional amendment instead of a ballot proposition, the ban would have been enshrined in the state constitution and the California Supreme Court wouldn’t be able to do anything about it today. We’re just lucky that it came up in the form it did.

Student Challenges Bill Clinton on DOMA

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At an MTVU forum last week, Smith College journalist Lily Lamboy challenged Bill Clinton on his decision to sign DOMA in 1996. The former president defended DOMA, basically saying that if not for DOMA, there would be a federal constitutional amendment banning same-sex marriage nationwide today.

BC: Let me ask you this: do you believe there will be more or fewer efforts to ban gay marriage constitutionally around the country if a Massachusetts marriage has to be sanctified in Utah?

LL: I –

BC: Yes or no. Answer the question. We live in the real world here.

LL: Sir, I understand. It’s a political backlash.

BC: No, not a political backlash. As a substantive backlash: the lives of gay people. Will there be more or fewer gay couples free of harassment if the law is that every gay couple in America could go to Massachusetts, get married and it would then had it recognized in Utah?

LL: But when is that going to change if you’re not going to set a firm stance.

BC: So you don’t care what the practical implications are?

No mention here of the other part of DOMA, the one that entirely bans federal recognition of an individual state’s same-sex marriages.

Also, Clinton’s argument that he signed DOMA in order to prevent a federal amendment seems like reasoning after the fact. David Mixner, former advisor to Bill Clinton on gay issues who later broke with him, stated last year:

First, [Hillary] Clinton’s claim that DOMA was passed so it could help defeat the Federal Marriage Amendment (FMA) eight years later is absolutely false. As we all know, the FMA wasn’t really a threat until 2002, and the two pieces of legislation had distinctly separate origins. While having DOMA on the books might have been a factor in the FMA’s defeat, it was passed for political reasons in an election year. In fact, after proclaiming to the community how painful it was for him to sign it, President Clinton’s reelection campaign had ads up in the South touting the legislation within two weeks!

Indeed, a federal amendment didn’t appear to be a threat in 1996. It’s not mentioned in this article, “President Would Sign Legislation Striking at Homosexual Marriages” (May 23, 1996):

The White House said today that if Congress passed a bill to deny Federal recognition to same-sex marriages, President Clinton would sign it, although such unions are not yet legal in any state. The announcement, intended to remove any potential controversy with Republicans over a divisive social issue, infuriated gay rights groups…

Mr. Clinton has long opposed the concept of same-sex marriage, and his spokesman, Michael D. McCurry, hinted broadly last week that the President would sign the “defense of marriage” act co-sponsored by his presumptive Republican rival, Senator Bob Dole of Kansas. The bill, which has not yet passed either house, would define marriage as the union of one man and one woman, and would deny Federal pension, health and other benefits to same-sex couples.

A federal marriage amendment isn’t mentioned in any of the other DOMA articles in the Times in 1996 either.

In October 1996, the Times reported on a Clinton ad touting the fact that he signed DOMA:

In a radio advertisement aimed at religious conservatives, the Clinton campaign is showcasing the President’s signature on a bill banning gay marriages in spite of earlier White House complaints that the issue amounted to ”gay baiting.”…

Mr. Clinton signed the law early on a Saturday morning, minimizing news coverage. He said he had long agreed with the principles in the bill but hoped it would not be used to justify discrimination against homosexuals…

The Dole campaign was critical. ”This is a President who signed the Defense of Marriage Act in the middle of the night so it wouldn’t be news, but now he does paid advertising to promote it,” said a Dole spokesman, Gary Koops. ”This is a President who has never supported any restriction on abortion, but now, 20-plus days before the election, he does ads touting the fact that he now says he supports restrictions.”

Clinton wasn’t trying to prevent a federal marriage amendment. He was trying to get reelected. And as John Aravosis pointed out last year, it wasn’t the last time he supported using gays as a wedge issue.