Sounds reasonable, therefore, zero chance of passage. Congress in general, and liberals in particular are loath to give up control.
After all, one must maintain control.
Rather like the repeal of the income tax in favor of the National Sales Tax (please do not confuse with the VAT), no hope in Hell of actual passage.

I think you've written up something that would likely be understood by most lawyers (including judges) in the way you intend.

In addition to the intended effects you acknowledge in your recap, you're committing the federal government to the conventional definitions very firmly indeed. Making something very much harder to UNDO is pretty much the point of making something constitutional rather than merely legislative. But this could potentially lead to the rather bizarre situation in which every state (and territory and tribe) has determined, separately and for themselves only, to accept same-sex marriage, but Congress would be constitutionally forbidden to (at least pending further amendment to the Constitution).

However, at least until the SCOTUS has had a chance to review whatever the Ninth Circuit does with the just-announced decision there, the chances of any amendment on this general subject actually passing both chambers of Congress with the requisite margin are vanishingly small, regardless of how well or poorly opponents of same-sex marriage do in the November 2010 state and federal elections.

Of course, there is the OTHER option, besides 67 votes in the Senate & 290 votes in the House -- namely the legislatures of 34 states calling for a constitutional convention to propose an amendment to that effect. And given that Article V states that Congress "shall" call such a convention, doing so would be mandatory.

I like it, but aren't parts 2 and 3 already federal law, in the Defense of Marriage Act (DOMA)?

The 38 states is the easy part. No matter how many seats the Republicans pick up in the mid-terms, getting 67 votes for this in the Senate is near impossible absent all of Middle America marching on Washington and demanding same.

IIRC, the 17th Amendment didn't get passed until the States had almost called for a Constitutional Convention.

And while we are at it, if we really want our country back from the political class, we need to repeal the 17th and 16th Amendments, at a minimum.

Snochasr:

I like it, but aren't parts 2 and 3 already federal law, in the Defense of Marriage Act (DOMA)?

As I noted in the post. But as I also noted, DOMA itself is under attack in the federal courts and will almost certainly be ruled unconstitutional by one or more circuit courts. And I don't know if the Supreme Court will accept cert or overturn those decisions; there is, after all, the "full faith and credit" clause, which Justice Anthony Kennedy, the Swingin' Justice, might find compelling enough to strike down DOMA.

One district court judge, Joseph L. Tauro (MA, Nixon), has already ruled unconstitutional the guts of DOMA; others are sure to follow, especially as leftist plaintiffs are adept at judge-shopping.

Captain Ned:

No matter how many seats the Republicans pick up in the mid-terms, getting 67 votes for this in the Senate is near impossible absent all of Middle America marching on Washington and demanding same.

I'm not so sure that's true; I deliberately crafted this to make it as hard as heck for even a liberal to vote against it. That's why I didn't simply make traditional marriage the definition for each and every state; that would have been easy to reject!

Instead, I said that each state gets to decide without federal interference. With that proviso, liberal senators can spin a vote for the amendment as a vote to prevent "Republican Nazis" from shoving traditional marriage down liberals' throats.

And it's deucedly hard for even a liberal to vote to disempower his own state from defining marriage; he must, after all, face those voters eventually. I think a lot of liberals would hold their noses and vote for it.

I think we could definitely get 290 in the House, and I think we could definitely get 38 states to ratify. But can we get 67 vote in the Senate? That's much harder... but not facially impossible, I believe.

Rhymes With Right:

As far as a constitutional convention option, since we haven't called one since 1787, I find it dubious that we would call one now. But it's possible that if enough states were lined up and rarin' to go, and if the House voted 2/3rds for it, but the Senate blocked it by only a few votes -- say they mustered 63, just four short -- and if Emperor Anthony tips the Court 5-4 in favor of mandating same-sex marriage (no pun intended)... then it might well be possible.

Who knows?

Dafydd

There won't ever be a constitutional convention called because of fear that there is no way to limit its scope in advance, with the result that such a call would therefore produce a "runaway convention," much like the original one that -- when called upon merely to revise and harmonize the Articles of Confederation -- instead wrote our present Constitution. To call a constitutional convention, every state would have to agree to bring, in effect, its entire net worth and all of its future prospects to a table at which the game will be no-limit Constitutional Hold'Em. The original convention had the same high stakes, but it only worked because the states had less to lose, the status quo (the Articles of Confederation) were entirely intolerable, and there were genuine statesmen at the table. And even then, it produced some band-aid solutions to compelling problems, the most significant of which led more or less directly to the Civil War.

If Justice Kennedy ends up swinging left on the CA case, then as a direct result -- as with Prop 8 in CA, which was itself a reaction to a decision of the California Supreme Court -- something like your proposed amendment might have a chance of passage through both chambers, Dafydd.

Beldar:

In my mind, I give the Swingin' Justice about a 70% chance of upholding Proposition 8.

In order to overturn it on constitutional grounds (as opposed to merely voting against it), one must actually be a gay-rights activist: Declaring it unconstitutional, as did Judge "Dredd" Walker, would mean every state and territory in or owned by the United States would have to allow same-sex marriage, and damn the people!

Not only that, but one must also believe that:

• Tradition has no legitimate role in drafting laws.
• Neither does society have any legitimate interest in merging the male psyche with the female psyche; since, as every parent knows, boys and girls, men and women, are completely interchangeable.
• Thus there can be no possible reason other than mean-spirited bigotry to oppose same-sex marriage, and thus no possible rational basis for an amendment like Proposition 8.
• In fact, all of human civilization for all of recorded history has gotten marriage wrong (even polygamous civilizations never sanctioned same-sex marriage), while Judge Dredd has it right.
• And of course, that "we people of the pavement" simply cannot be trusted with our own governance, but must be led by our betters... preferably those wearing robes.

I just don't see Emperor Anthony as a gay-rights activist. An activist on other issues (e.g., military tribunals), but not this one.

I expect that it will eventually be upheld -- by the 5-4 vote to which we have become accustomed, with Elena Kagen substituting for John Paul Stevens. That is, Roberts, Scalia, Thomas, and Alito strongly upholding Proposition 8; Ginsburg, Breyer, Sotomayor, and Kagen passionately condemning it; and Kennedy reluctantly upholding it.

But even a 30% chance (in my mind) is too much. To me, it's a slam-dunk that states should be able to amend their constitutions; and the only grounds for the federal courts to overturn would be if the amendment clearly and unambiguously violates some explicit clause of the U.S. Constitution, the "supreme law of the land"... not simply beause the federal judge disapproves the way the vote went.

Either we have government by the consent of the governed... or else we have some form of tyranny. That's the bottom line.

Dafydd

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