Santorum: I Will Uphold The Sanctity Of Marriage By Unmarrying 131,000 People If Elected

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