Nationwide gay marriage by Const. amendment as opposed to Supreme Ct ruling?

You shocked me for a bit because this was in News. Then I read it and was like 'awww'. I think it would be possible in several years from now. Right now, about 60-70% of Americans feel homosexuality should be socially accepted. According to polls, about 58% say gay marriage should be allowed. Younger people tend to be more accepting than the older generations. With all the pro-gay media, people are slowly leaning more to acceptance.

 

I still can't believe it ISNT legal in America everywhere! I never understood why people are against it...

 

I actually think by that time every state would have it anyway, but if not that is probably how it would go.

 

I think it will be a Supreme Court ruling. Constitutional amendments are extremely hard to pass, and that's by design. Democrats would have to have 291 votes in the House and 67 in the Senate in order to pass a constitutional amendment, as it takes a 2/3 vote in each house to pass. From there, Democrats would have to control 38 state legislatures in order to get the amendment ratified, as 3/4 of the states have to ratify a constitutional amendment in order for it to take effect, and that's not going to happen any time soon. That's the reason George W. Bush couldn't get his Federal Marriage Amendment passed back in 2004, even though Republicans controlled both the House and the Senate.

 

Because God.

Still, it's how the constitution works. Which is interesting, because not everything the US has done has been according to the constitution. If we followed the Constitution to the tee, we'd be split because there would be a nation of confederate states. I'm not saying it's a bad thing, I'm simply saying that, constitutionally, that's what should be the case.

In any case, nevertheless, that's how it works. I mean yeah, there obviously can be a law that says that marriage is a right that should be protected by the 14th amendment. But until extreme religious conservatives see that being gay doesn't mean The Reckoning (and never has been), they'll say that their 1st amendment religious rights are being infringed upon.

 

That's a trend I've been seeing more and more these days. It seems that "freedom of religion" is only for Christians, and if you ask radio host Bryan Fisher, the definition of "religion" in the First Amendment (For those who don't know, the part in question of the First Amendment states, "Congress shall make no law respecting an establishment of religion, nor prohibiting the free exercise thereof.") means Christianity only. So you're only allowed to choose whether you want to be a Methodist or a Baptist or a Catholic, and it's illegal to be an atheist or a Buddhist or a Muslim or a Pagan.

I find it amazing how people can actually believe that the right of an individual to choose his own religion allows the government to mandate children be indoctrinated with Christianity in public schools in the form of Creation education and teacher-led prayer.

 

I think we'll see a Supreme Court ruling in favor long before any strong movement for Constitutional amendment (in the next 10-15 years).

I'd imagine there would be a lot more meaningful resistance to an act that has to be approved Congressionally than something that goes through nine relatively less partisan (or at least supposedly) court judges.

 

Does marriage in the US have to go through Congress in the form of a constitutional amendment? Is it not possible through regular legislation?

 

I believe within the next 10 years we will have full equality here, even in states like Alabama, Georgia and Mississippi. It'll be from a Supreme Court decision. If it is in fact by an amendment, it would have to be when 39 states have same sex marriage, and only 11 or less states are holding out.

 

Here's how I see things ultimately playing out: through a series of rulings, the Court rules that the state must recognize all valid state-issued marriage certificates and cannot discriminate based on gender. If a heterosexual couple married in Massachusetts moved to Kentucky, their marriage would be considered valid in Kentucky, but the same would not be true if the couple were same-sex. That denies them equal protection under the laws. Thus we'd have de-facto same-sex marriage nationwide even if some states don't want to grant the licenses themselves.

Then, I see states' bans being overturned one by one, either via legislative action, ballot initiative, or judicial action, so that same-sex marriages can be performed anywhere. And, I see religious organizations being allowed to only ordain the marriages of whomever they choose based on free expression. Which, in our non-theocratic, pluralistic society, is fine, because I don't need to go to a Church to get married (which is good because I'm Jewish).

 

This is going to be a long explanation, so get ready.

The United States' form of government is based on a philosophy called Federalism, where the government that oversees the entire country has certain powers that the states don't have, the states have certain powers that the national government doesn't have, and there are powers that are shared.

This is generally a state-by-state issue. Each state has set its own marriage laws, and that's why it's only legal in 19 states so far. As it stands now, Congress might not have the right to compel states to recognize gay marriage. However there's the 14th Amendment which contains the Equal Protection Clause, which states that rights are applied equally to all people, and you can't give rights to one group and not others. That basically makes it illegal to ban gay marriage, but the Supreme Court hasn't ruled on this yet. If they were forced to make a ruling, gay marriage would be legal across the United States.

As for passing a federal constitutional amendment, there are two ways of going about it. One is the way that all 27 have been passed: as a piece of legislation through Congress. The US Constitution specifies that in order to pass a constitutional amendment, 2/3 of the members of each House of Congress (291 out of 435 in the House of Representatives and 67 out of 100 in the Senate) must vote "yes." From there, 3/4 of the individual states (38 out of 50) must vote to ratify the amendment. Some of the constitutional amendments that have been passed had time limits for the states to ratify them (7 years in the case of Presidential term limits), and others, like the 27th Amendment were slowly ratified over time. The 27th Amendment was passed by Congress in 1789 and stated that if Congress votes itself a pay raise, it won't take effect until after the next election. After being passed in 1789, it was finally ratified by its 38th state and took effect in 1992.

The other way of passing a constitutional amendment has never been used. If 2/3 of the states, which is 34 states, call for a constitutional convention, then constitutional amendments can be proposed and then placed up for ratification by the states, 38 being necessary for a constitutional amendment to take effect. Congress would have no say in anything at that point, and this has never happened in the history of the United States. Right wing talking heads have been screaming about this recently, for everything from a Balanced Budget Amendment, to repealing what's colloquially known as "Obamacare" by constitutional amendment.

The individual states have their own constitutions and have used them on this issue. 27 states wrote into their constitutions that gay marriage is illegal as a way of preventing their legislatures and courts from changing that. However, Federal law trumps state law, and when in conflict, the Feds always win. That's how marriage became legal in Utah.

 

That's how it became legal in Oklahoma as well, if the ruling stands.