Orval Faubus, er, I mean KBJ, celebrates Virginia’s anti-gay marriage amendment:
“Once the commonwealth’s constitution is amended, only a United States Supreme Court ruling can overset it, and if that happens, the United States Constitution will be amended in a heartbeat. You heard it here first.”
Um, no.
You see, while the founding fathers wanted the Constitution to be more adaptable than the Articles of Confederation, they were also justifiably concerned about popular passions being aroused by a demagogue and were concerned about preventing simple majorities from trampling on the rights of minorities. So, while there is an amendment process outlined in Article V, it is a process designed to thwart willy-nilly changes designed to produce short-term political gains. The process is intentionally slow, deliberative, and possible only through supramajority at a couple of levels.
An Amendment can be proposed in two ways:
1) A Two-thirds vote in each house of Congress. This will not happen. In the midst of an election cycle, 48 Senators opposed even bringing a proposal to the floor of their chamber. FIFTEEN Senators would have to change their minds on the issue.
2) Two-thirds of the state legislatures can pass bills requesting a constitutional convention. This would take 34 state legislatures passing such a request - requiring 67 different chambers to agree (Nebraska is unicameral). Republicans - those likely to support such an amedment, control both houses of only 20 states. Even if a few Southern legislatures in the deep South concur, the state proposal path is still a longshot. See map here for party control in state legislatures.
Assuming a marriage Amendment is proposed, it then has to ratified by three quarters of state legislatures: 38! Sixteen states have changed their constitutions to ban gay marriage; will 22 more suddenly jump on the band wagon for a national amendment?
If the anti-gay forces are unable to muster a simple majority in the Senate and only a third of the states at present, they have little hope for the future. The younger generation is much more tolerant of homosexuality. Demography, my friends, is desiny.
Forty years later, Orval Faubus’ belief that “Justice requires that likes be treated alike and unlikes differently” is held in contempt. We struggle to understand how a man could be so blind to the obvious injustice of his position.
In 2045, our children will be reading primary sources containing arguments similar to Burgess-Jackson’s. And they will struggle to understand how a man could be so blind to the obvious injustice of his position.
