Constitutional amendments on gay marriage

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(Host) Commentator Cheryl Hanna recently attended a conference on President Bush’s proposed Constitutional amendment to ban gay marriage, and it got her thinking about what such an amendment might mean for Vermont, and the nation.

(Hanna) Among the speakers at the conference was Vermont Attorney General Bill Sorrel. On the issue of a constitutional amendment, and only on this issue, he said, he and Vice President Dick Cheney actually agree.

You see, most legal scholars think that if the President’s proposed amendment were to pass, it would ban states like Vermont from allowing civil unions, as well as banning states like Massachusetts from granting marriage outright. That would infringe on individual freedom and states’ rights.

Cheney, whose daughter is openly gay, opposes the amendment and believes, like Sorrel, that the status of same-sex relationships ought to be left to the states.

Sorrel’s remark about Cheney got me thinking. Even though in recent years Republicans have proposed most Constitutional amendments, such as those to ban flag burning and to allow school prayer, it’s important to take partisan politics out of the debate.

The real question is whether it’s good for democracy to amend the Constitution.

The answer to that question, by the majority of Americans across the political spectrum, has almost always been “no.”

In fact, there have been more than 10,000 Constitutional amendments proposed in Congress – my favorite being an 1893 amendment that would have renamed the country “the United States of the Earth.”

Yet only 27 of those amendments have passed. And if you exclude the Bill of Rights, the Constitution has been amended only 16 times since 1791. That gives the President’s gay marriage amendment, historically speaking, less than a 1% chance of making it.

Most Americans understand that the Constitution should be amended only to strengthen our democracy, and a guiding principle of democracy is equality. Of the amendments that have passed, most have dealt with including more people in the political process through ensuring individual rights and enfranchising voters.

In fact, the only amendment which sought to take away rights from Americans was the 18th amendment, which imposed prohibition. It was a disaster and later repealed. One lesson we learned, I think, is that most social issues are best resolved by the states or by individual conscience, not by constitutional alterations.

I know there are those who argue that we need amendments to stop courts from expanding rights not explicit in the Constitution’s text.

Yet the text of the Constitution answers that concern. Vote. Vote for the President and Senators you think will appoint and confirm those judges who will best uphold our democratic traditions.

Whether or not they’re comfortable with the idea of marriage or civil unions for same-sex couples, I really do believe that most Americans – well, like Bill Sorrel and Dick Cheney – understand that democracy would be seriously damaged if discrimination became part of our Constitution.

This is Cheryl Hanna.

Cheryl Hanna is a professor at Vermont Law School in South Royalton.

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