Why the Constitution will not ban gay marriage

The New York Times has a front-pager about American views on gay marriage. Here’s how it opens:

The latest New York Times/CBS News poll has found widespread support for an amendment to the United States Constitution to ban gay marriage. It also found unease about homosexual relations in general, making the issue a potentially divisive one for the Democrats and an opportunity for the Republicans in the 2004 election. Support for a constitutional amendment extends across a wide swath of the public and includes a majority of people traditionally viewed as supportive of gay rights, including Democrats, women and people who live on the East Coast…. The nationwide poll found that 55 percent of Americans favored an amendment to the constitution that would allow marriage only between a man and a woman, while 40 percent opposed the idea.

Now, 55-40 is a healthy margin in electoral politics. Not, however, for constitutional amendments. For a constitutional amendment to pass, you need the both houses of Congress to approve the measure by a two-thirds majority, and then have three-quarters of the state legislatures approve it within a specified time period. It’s an extraordinarily difficult and cumbersome process, with lots of veto points to stymie progress. As the Times notes way down in its story:

Sanford Levinson, a constitutional expert at the University of Texas Law School in Austin, said it was extremely hard to amend the Constitution. If the ban on gay marriage passed the House and Senate, he said, opponents could stop it by getting the support of one house of the legislature in just 13 states. Mr. Levinson said President Bush’s support was “a free pass” because he probably knows how difficult it would be to get through Congress, let alone through 38 states. “The idea is for Bush to throw red meat to the Republican right, secure in the knowledge that this is not going to go anywhere,” he said. “If it did go anywhere, it would tear the Republican Party apart.”

Levinson is correct. If you look at the breakdown of the poll, support for a constitutional amendment is strong in the South, but falls below 50% in the West and is barely over 50% in the Northeast. Off the top of my head, here are the states I can’t see passing this amendment:

California Connecticut Hawaii Maryland Massachusetts Minnesota New Hampshire New York Oregon Rhode Island Vermont Washington Wisconsin

For a constritutional amendment to be ratified, one of these states would have to approve it, as well as every other state in the union. Another thing — public opinion is fickle. Indeed, the attitudes about gay marriage have been extremely volatile over the past year, as the CBS story on the poll observes:

The public has reversed itself on the overall question of same-sex relations. Half now think homosexual relations between consenting adults should not be legal — a reversal of opinion from the summer, when a majority of Americans thought they should be legal…. At 49 percent, the percentage that thinks homosexual relations should not be legal is the highest recorded since the CBS News/New York Times Poll started asking the question in 1992. As recently as July, 54 percent thought such relations should be legal, while 39 percent thought they should not. Now, 41 percent think homosexual relations should be legal.

Other “controversial” issues have prompted similar fluctuations in public opinion. A June 1999 Gallup poll showed 63% support for a constitutional amendment to ban flag burning — eight points higher than current support for an amendment to ban gay marriage. By 2002, according to this CBS poll, that figure had declined to 45%. Finally, one other piece of data from the poll suggests that as time passes, this issue will lose support. Respondents under 30 years of age opposed the amendment 52% to 44%. Among those over 65, support for the amendment was overwhelming, 69% to 27%. Unlike Social Security or Medicare, this public opinion divide is in all likelihood a reflection of the set of societal mores that were around during their formative years. Which means that over time, support for an amendment is likely to wane. I don’t doubt that this will be a political issue for the 2004 election, just like flag burning was an issue in 1988. I also don’t doubt that as a constitutional amendment, this won’t fly.