Balta reports today that Chicago mayor Daley is open to a San Francisco-style protest on the issue of same-sex marriage. Daley can’t do it alone, however, since marriage licenses are issued by Cook County. But Daley has signaled to David Orr, the Cook County Clerk, that Daley will support the issuance of marriage licenses. If this happens, buckle up and hang on – Chicago ain’t San Francisco, and Daley is not typically a “left wing” mayor. We could be witnessing the beginnings of a civil rights campaign with real legs. Sure, it’s going to get ugly, but passing the Federal Marriage Amendment is going to be a lot harder than the Religious Right thinks. The polling numbers would seem to suggest that it’ll be a tough fight, but a slight majority isn’t nearly enough.
For the FMA to become part of the Constitution, it needs to pass both houses of Congress with a 2/3rds super-majority, and then ratified by the legislatures of 75% of the states. The method of ratification can be vote of the legislature, or by state convention. Only one amendment in history has been ratified by state convention: the repeal of Prohibition. Another method is to circumvent Congress and for state legislatures to call a Constitutional Convention, which can propose amendments. The proposed amendments still require 75% ratification by states. This method has never been taken; the only Constitutional Convention we’ve ever had is the original in 1787. Notably, the FMA is being pushed through a fairly “standard” path – votes in both houses of Congress, and then state ratification. My prediction is that the FMA will never be ratified, even if it passes both houses of Congress (which is far from certain). It will only take 13 states to block ratification, and by my count, anywhere from 13 to 17 states would likely not ratify.
For my part, it’s time for another civil rights movement in this country. Between the Patriot Act, the FMA, and the slow erosion of existing rights via the Rehnquist Court’s “procedural” attacks, it’s time to demonstrate that our rights matter and that Americans will protect them. The “war on terror” is not an excuse for giving up ground on our most fundamental freedoms.
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