A question about the FMA.

[liberal72]

To anybody that is lawyer or knows more about law than me. Can the constitutional amendment allow heterosexual couples who are related (incest) to be married. Since the gay bashers want to say we are trying to allow "man-dog" sex, incest and polygamy to happen in some ambiguous way, we need to point out that they are going to cause this to happen because of their knee-jerk reaction to gays.

[Dookus]

1. No version

of the amendment that I've seen even mentions incestuous relationships, so it wouldn't affect them at all. Brother/Sister marriage is already illegal in all 50 states, and the amendment, even if passed, wouldn't have any effect on that.

[Maat]

2. And remember, guys, that the state can always regulate ...

for public safety, health and welfare. But as members of this board have recognized, it is presumed that everyone has certain fundamental rights. The burden is on the government to establish that it has a compelling interest (very high standard to meet) in order to have a law on the books that impedes that right; in other words, it must be established that the State has no less restrictive means to achieve its own compelling social end. Here, there is no compelling need to deny the right to marry to gays; moreover, it is denial of equal protection of the law. Fear not, however. The State will still be able to prevent children from being exploited (a compelling need). Thus, the right-wing is pandering to Fear, and is lying/misguiding its financial base.

[rwenos]

3. Constitutional Amendment Could do ANYTHING

A constitutional amendment can do ANYTHING -- the Constitution is the highest law of the land. If two-thirds of both houses of Congress pass it, and two-thirds of the state legislatures ratify it, it becomes part of the Constitution.

This would literally even be true of an amendment repealing the Bill of Rights, or creating a king.

A pretty good reason to avoid having another Constitutional Convention, eh?

[Hippo_Tron]

4. Three fourths of state legislatures actually...

There's also a way to do it with national convention/state conventions.

[rwenos]

5. Three-Quarters is Correct, but a Third Way?

You're right, if three-quarters of the state legislatures call for a constitutional convention, it's called. I don't know of the third way you suggest. Could you describe? (I'll pull out my copy of the Constitution and read it again.)

The Wingnuts have been arguing for one for years. Just think what they'd try to do with THAT!

[rwenos]

6. The Bare Essence:

Article V:

The Congress, whenever two thirds of both Houses shall deem it necessary, shall propose Amendments to this Constitution, or, on the Application of the Legislatures of two thirds of the several States, shall call a Convention for proposing Amendments, which, in either Case, shall be valid to all Intents and Purposes, as part of this constitution, when ratified by the Legislatures of three fourths of the several states, or by Conventions in three fourths thereof, as the one or the other Mode of Ratification may be proposed by the Congress; . . . .

[Maat]

7. My point was...

yes, an amendment to the Constitution trumps all. But this one doesn't mandate incest or polygamy. So when the conservative-wackos say that failure to pass the amendment means that the State will have to fully sanction incest or polygamy ... they are full of bull. Saying that equal protection mandates that two consenting adults be allowed to marry, the way one class of couples is allowed to marry, does not mean that each state will have to give up protecting children or noncompetent adults or whatever. That's nonsense. So the FMA is pure bigotry and bullying. I'm very concerned about the FMA because you're right, once it gets in, a conservative judiciary could interpret God only knows how. We must stop it. My point was that the justification for the FMA is hollow/false.

[rwenos]

8. It's a Trojan Horse

in all likelihood.

I was just making the point that a Constitutional amendment, as you say, "trumps all."

I wouldn't have much faith in the Supremes using the Equal Protection clause to strike down state marriage laws. They save their Equal Protection jurisprudence for election-law cases out of Florida!

[Maat]

9. I hear you.

What I think will happen is that state supreme courts will use state equal protection clauses to strike DOMAs. Out here, in Cal, the State Supremes have never met an equal protection argument they did not like. But give me a point. The justification that the right wingers are using ... the fear factor .. is so much bull.