A statement that Rick Santorum made recently is attracting more attention this month as the Republican primary continues to drill down on conservative social issues, particularly same-sex marriage. At the end of December, Santorum pledged he will push through an amendment to the Constitution banning same-sex marriage — nothing new there. However, he is also asserting that the amendment would be retroactive and nullify prior same-sex marriages –estimated to be more than 131,000.
That raises an interesting legal issue. Santorum insists that the amendment should be written so that prior same-sex marriages “would be invalid.” As we saw in the California battle over Proposition 8, a constitutional amendment can be retroactive but it is not assumed to be so. It must be clear to voters that it will not simply apply to future conduct alone. However, the assumption is that, if it were clear, such an amendment could undo prior marriages despite the reliance of individuals on these recognized licenses.
That could produce an array of collateral consequences. Currently recognized couples would lose legal and contracting rights tied to their status. Businesses (and states) could still recognize the same rights as protected as part of a civil union.
I have long advocated that the solution to this debate is to get rid of “marriage” licenses in favor of a universal civil union standard — which is closer to the function of the state recording of such unions. I believe that marriage should be left to individual faiths and institutions as a religious-based concept. The role of the state is to record a civil commitment of two individuals to live as one couple. The current debate — including the demand for retroactive termination of marriages — shows how the term marriage continues to inject religiosity into what is a civil contract between citizens.
As for Santorum’s retroactivity claim, I do not see why an amendment could not be drafted to accomplish such an intent. The Constitution has changed the status of individuals in ways great and small. Whether the prior status is slavery or nonvoting or some other status, it can change the position of citizens moving forward. The retroactivity question comes down simply to a question of clarity in drafting. The reason this is notable if that, while Santorum appears to be tanking in the primaries, his insistence on retroactive application of an amendment is likely to “up the ante” for those supporting a constitutional amendment.
As a matter of constitutional law, do you see any legal reason why an amendment could not be written to apply to nullify same-sex marriages?
Source: SF Gate
Lotta,
It is the beginning of the South Carolina Taliban.
SWM, It’s time for the Democratic Party in South Carolina to start putting up billboards that say ‘Join our party, we recognise your right to watch whatever you want to once the kids are put to bed’. 🙂
Idealist, http://www.huffingtonpost.com/corey-hutchins/new-sc-purity-pledge-for-_b_1320174.html
The Janitor,
I’m assuming you are talking about Art. I, Sec. 10 which says “No State shall enter into any Treaty, Alliance, or Confederation; grant Letters of Marque and Reprisal; coin Money; emit Bills of Credit; make any Thing but gold and silver Coin a Tender in Payment of Debts; pass any Bill of Attainder, ex post facto Law, or Law impairing the Obligation of Contracts, or grant any Title of Nobility.”
1) That only applies to the States.
2) It only applies to legislation, not precedent.
Energy Reserves Group v. Kansas Power & Light 459 U.S. 400 (1983) established a three prong test for determining if regulation violated the Contracts Clause.
1) The regulation must not substantially impair a contractual relationship.
2) The State “must have a significant and legitimate purpose behind the regulation, such as the remedying of a broad and general social or economic problem.”
3) The law must be reasonable and appropriate for its intended purpose.
Given that, I do not see the Contracts Clause as an insurmountable barrier on this issue.
I know I’m coming in late but just wanted to point out that YES we can, in theory, pass an amendment on anything we want but Article I of the Constitution currently prohibits the federal government from passing laws that would impair contracts. And since Marriage is a contract, we would have to really consider why we would want to pass an amendment to override Art I.
Swarthmore mom1, March 5, 2012 at 3:51 pm
Before you can join the Laurens County Republican Party in South Carolina and get on the primary ballot, they ask that you pledge that you’ve never ever had pre-marital sex — and that you will never ever look at porn again.
Got a link?
Want to send it around for putting up on BBs and “laugh at”-at sites. Maybe send to Alec as a new law mall?
Civil unions are less than equal rights sheaffer!
I still don’t understand why the term ‘marriage’ is so pivotal. Civil Unions are the clear compromise here.
I like that idea Pete!
how about an amendment banning divorces, and make it retroactive. anyone who ever had a divorce and remarried is then a polygamist. excepting annulments of course.
we can call it “newts law”.
SwM,
Another SC story for you and others:
My brother, 10 years older than I, got cornered into one of those deals to drive over to SC for a quicky marriage, she was pregnant.
She wasn’t more pregnant than the pillow provided by her mother.
And his first son was fathered by another man, since he was on the road so much working, so he couldn’t watch the roost. The neighbors got tired of it, and informed him.
Those kind of shotgun weddings were very common in the days when pullout was equivalent to Russian Roulette—maybe not so fatal. but a life effecting activity..
Poor dumb white trash? Not at all. The rich had better condom habits, and otherwise had abortion contacts. Or accorded on trips to Europe, or Hawaii, etc. Outside the world of the 99%.
He eventually became responsible for the maintenance of the whole of the WU network in NC… And re-married and has four grown children, each with several spouses, divorce being popular nowadays.
Adventures seem to run in our family. In yours too?
Well said Mr. Spindell.
Before you can join the Laurens County Republican Party in South Carolina and get on the primary ballot, they ask that you pledge that you’ve never ever had pre-marital sex — and that you will never ever look at porn again.
Last Tuesday, the LCGOP unanimously adopted a resolution that would ask all candidates who want to get on the primary ballot to sign a pledge with 28 principles, because the party “does not want to associate with candidates who do not act and speak in a manner that is consistent with the SC Republican Party Platform.”
Among the principles, according to Vic MacDonald & Larry Franklin of the Clinton Chronicle, is standard fare like opposition to abortion and upholding gun rights, as well as “a compassionate and moral approach to Teen Pregnancy” and “a high regard for United States Sovereignty.”
But then they get even more specific. From the Chronicle:
You must favor, and live up to, abstinence before marriage.
You must be faithful to your spouse. Your spouse cannot be a person of the same gender, and you are not allowed to favor any government action that would allow for civil unions of people of the same sex.
You cannot now, from the moment you sign this pledge, look at pornography.
Mespo,
“He said the Republicans are the party of the white, less educated, and blue collar and this type of inflammatory rhetoric appeals to them.”
That’s a significant part of the base since the solic Democratic South changed colors after LBJ.
Anything known about other sectors. I mean small businesses are a sector.
I think you hit on it Mespo. The GOP has succumbed to the radical right of its party and they will suffer because of it nationally.
I heard an interesting comment from James Carville on Bill Maher’s show last week. When discussing the nauseating field of Republican candidates, Carville alluded to Civil Rights Era Georgia Governor Lester Maddox who once quipped that the state of Georgia prisons was in direct proportion to the quality of its inmates. Thus Republican voters have only themselves to blame for this “clown car” of candidates as writer John Heilemann called them. He said the Republicans are the party of the white, less educated, and blue collar and this type of inflammatory rhetoric appeals to them.
Maybe you really do get the leaders you deserve rather than those you want.