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
I can only wonder if our country is doomed listening to all the BS coming from these so-called candidates for president. Looking at Santorum & Gingrich as examples I would be for banning all marriages!! I agree…Civil contracts only and if they want marriage they can do so in a church of their choice or their own private cermonies. The civil contract should have all terms agreed upon just like any business contract. AH….what wouldn’t I give to suggest this to Santorum personally and watch him faint.
Dredd,
“forked men speak with white tongues”
id707,
yep
Gene,
Exactly … besides, God told me to do it so don’t question my motives. I have no motive other than to follow instructions … I am pure of heart.
Blouise,
re Gene H. and plus I think we got a viable idea here.
Use their weapons.
One in 10 employees of Wall Street are clinical psychopath, according to a recent study.
It is clear to me that ~9 out of 10 neoCons are psychopaths, including Santorum and Gingrich.
Blouise,
I see you’ve adopted the reasoning that now dominates American politics.
“No reason … just because I say so.”
“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.” (JT)
Agree. If they want an amendment, let’s do that one.
I also want an amendment nullifying any marriages of registered republicans. No reason … just because I say so.
In order to connect with the American people and save all that is good and holy about our republic. I think he needs to bring this discussion to a more personal level. As the law continues to pass in states. So far, how has same sex marriages been effecting the sanctity of his marriage? Where does he see the future of his marriage if the law becomes national policy? Now wouldn’t that be a hoot?
I have to wonder how DOMA laws are to be enforced. Shall all couples applying for marriage licenses submit to genetic screening to determine their eligibility? The problem with this, of course, is that sex (never mind gender) is not as easy to determine as is generally assumed.
http://en.wikipedia.org/wiki/Sex-determination_system
Sainted Rum has been drinking too much of his own product.
Does Ex Post Facto apply to amending the Constitution? Can a legally passed Constitutional Amendment be declared unconstitutional? I think think in both cases the answer is no. What is interesting about this form of Conservative argument, is that these are the same people who have elevated the concept of “States Rights” into hallowed doctrine. Given that a number of states have now passed marriage equality legislation, this amendment would nullify their “State Right” to define marriage. This is clearly an example of the threat this nation faces from those on the “Right” like Santorum. They have no unified theory of governance save impose our beliefs on the majority. In doing battle with them the point to be made is not the lack of logic in their beliefs, but the totalitarian mindset that drives them. These people literally do hate freedom.
Frankly1, March 5, 2012 at 6:11 am
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isn’t that like peeing in the well….fine way to do business if you never need to drink the water…..
“I believe that marriage should be left to individual faiths and institutions as a religious-based concept. ”
Hear, hear! This is the fundamental problem here; that of the state being in the business of something that it clearly should not be.
Of course to those of Santorum’s ilk that is anathema. He wants to be in the business of other people’s business.
Frankly: ” My understanding is a constitutional amendment could be passed that enabled cruel and unusual punishment, suppression of free speech, white male only voting and people of color only counting as 3/5 of a person….”
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Give him time, it’s still early in the campaign. I figure he’ll get around to ‘white male landowners only’ having the vote around September. Some of the states are moving in that direction already.
I was unaware that we needed a law for the federal government to infringe on individual rights….. I thought all’s you needed was a singing statement…… Silly me….
PPS
Re polyandry/polygamy mentioned above: What were the reasons these were outlawed. Being in the interests of…..? In contradiction with…..?
I offer as an example, but no support, the case of Tibet, and more specifically the kingdom of Mustang, where polyandry is common within a group of brothers. This could be a solution to the self-inflicted lack of brides in Pakistan and India, where this is a consequence of post-partum murder of female babies.
Our subservience under gods and religious institutions should be set on the museum shelf. ASAP
Not being versed in law, I would still venture a point as to extensions to civil contracts as a replacement for marriage.
You write:
“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.”
Same sex bans carry with it certain problems, such as a case where an older woman wishes for philanthropical reasons to “marry” a younger woman. The wish is to engage the laws for the benefits of thereof and the rights of access and mutual responsibility, inheritance rights without a testament, etc. Would adoption be an out? Does that provide the same coverage as marriage does in the laws as ot obligations, benefits, etc Some say NO.
Thus the civit contract is preferable.
Imagine then a conventional married couple wishes to add another adult who consents to joining their contract. What then? To which parent if any (the child may be from donated egg/semen) shall the child be tied to?
Adding additional persons, even for non-reproductive purposes could be “reasonable”. The complications and possibilities are many.
So where do we stop for now? Add same sex contracts?
As for the amendment aspect, nolo contendere.
PS
Getting the church out of civil contract has historical precedence if we go back to ca 300 CE.
Santorum is not only UN-American, he is Un-Christian. Good luck with the amendment ting Rick. Same sex couples do vote you know. How did your last general election in Pa. turn out for you?
My understanding is a constitutional amendment could be passed that enabled cruel and unusual punishment, suppression of free speech, white male only voting and people of color only counting as 3/5 of a person. As long as it passes the require hoops we can destroy the thing more easily than it was made. So why not?
Take a look at the hot mess the voters of California have made of their constitution as an example. They have made the state damn near ungovernable & then they stand around wondering why nobody can save them.