The Viscount.com for Gay Equality--Essays On Equality section.

The "Gay Rubicon" has been crossed. A Vermont-style civil union compromise did not cut it in Massachusetts. The latter state's Supreme Judicial Court said yesterday, in effect, that gay couples must be afforded the full right of civil marriage, which, according to news reports, they can begin availing themselves of as early as May.

Certain conservative politicians are now talking about going the route of constitutional amendments to reverse this. However, I submit that such a route has now become impossible.

The Massachusetts State Legislature is hurrying to consider an amendment to that state's constitution. Even if it passes both state houses, according to the laws and procedures in that state, the soonest it could come before the citizens for a vote is November of 2006. So in that almost two-and-a-half year interim, potentially hundreds, thousands, perhaps even tens of thousands of gay couples (even from other states) could have availed themselves of the new privilege and tied the knot.

Assuming passage of the amendment by the citizens of Massachusetts (by no means a certainty), the proposed "heterosexual-only" marriage amendment would attempt to make same-sex marriage illegal in that state -- but two years too late. It would come at a point in time when same-sex marriage would already be fait accompli by virtue of several hundred or thousand gay couples having become legally married (it is vital to emphasize "legally" in the wake of the Massachusetts Supreme Judicial Court action). In other words, should the amendment pass in 2006, it would not only prohibit any future same-sex marriages, it would also attempt a reversal -- after the fact -- of those already performed legally. That is, without question, unconstitutional. While changing the status of certain acts from legal to illegal (or vice-versa) is certainly not unconstitutional, penalizing persons retroactively most certainly is. Consider the case of Prohibition in the 1920s: While it's quite true that consuming alcohol was first legal but then made illegal by the 18th Amendment, people were not retroactively punished for drinking prior to the enactment of the law. The U.S. Constitution specifically prohibits states from doing so in Article I, section 10 wherein the prohibition of ex post facto law (ex post facto, from the Latin, literally, "from after the fact") is stated. And forcing people to dissolve their marriages against their will is, without question, making them suffer a penalty.

The result might conceivably be a peculiar "closing of the floodgates" and "grandfathering in" effect -- they're stuck with the gay marriages already done, but will lay down the law against any more. But such an action would almost certainly not survive a Supreme Court challenge based on the equal protection provisions of Amendment XIV of the U.S. Constitution. You cannot afford a certain privilege to some citizens but deny it to others.

So is the answer, then, an amendment to the U.S. Constitution? In Article I section 9, the same limitation is placed upon the national legislature: "No bill of attainder or ex post facto Law shall be passed." Strict interpretation of the Constitution forbids making same-sex marriage illegal in Massachusetts (or any other state which should in the mean time decide to allow it) after the fact.

Therefore, without first amending (read: "destroying") the U.S. Constitution to delete prohibitions of ex post facto law contained in Article I, sections 9 and 10, any proposed state or federal amendment would ITSELF be unconstitutional if it contained any retroactive element. Any same-sex couple legally married in Massachusetts over the next two years will stay that way, and any attempt to deny the same privilege to subsequent same-sex couples in that state would almost surely fail on equal protection grounds.

The above scenario assumes an attempt to simply forbid outright same-sex marriage in Massachusetts with a constitutional amendment, be it state or federal. Because the probability that cannot work is extremely high (in fact, assuming an unbiased U.S. Supreme Court, I submit it is impossible), let's turn to something a bit more complex, given the alarm this is causing across the country at the prospect of other states having to recognize same-sex marriages performed in Massachusetts.

At the federal level, rather than make any focused attack on same-sex marriage in Massachusetts, let's assume they try to "contain the damage," so to speak, to that single state. This would mean crafting a type of "heterosexual-only-across-state-lines" U.S. Constitutional Amendment which would exempt each individual state, if it so chooses, from recognizing same-sex marriages performed in any others (an attempt to incorporate the principles contained in the federal "Defense Of Marriage Act," or "DOMA," into the Constitution, in other words.) This, of course, goes contrary to the "full faith and credit" clause of Article IV (where DOMA is already highly vulnerable), whereby each state must recognize the public acts, records, and judicial proceedings of all other states. It is also arguably in opposition to Amendment XIV's equal protection provisions. But let's assume it contains language to specifically exempt it from those two provisions (which is, itself, quite a stretch, as well as quite possibly unconstitutional).

Had this type of "hetero-only" amendment passed prior to the actions in Massachusetts, it might have had a chance, if only a slim one. But because it did not, time is not on the side of the opponents of same-sex marriage. And I believe they are well aware that DOMA is doomed thanks to the full faith and credit clause, which is why the amendment strategy has now taken on such an urgency for them.

Assuming a national "heterosexual-only-across-state-lines" marriage amendment passed both houses of Congress with the required super-majorities (by no means a certainty), it would then take several years to pass the required 38 individual state legislatures before it becomes law (38 individual state ratifications are by no means a certainty either). In the interim there will be instances of same-sex couples from out of state traveling to Massachusetts to get married, who will then return to their home states and initiate court challenges to have the action legally recognized at home (some states eventually might do so; others most definitely will not). Ultimately this will result in a Supreme Court challenge to any existing laws -- DOMA included -- whereby one state refuses to recognize the legal proceedings of any other state. Again assuming an unbiased U.S. Supreme Court, there can be no question which way that decision would go: It must honor the "full faith and credit" clause of Article IV. The only question is, would it be decided prior to the 38th "yes" vote if it happens; i.e., the last required state legislature voting on the new "no cross-state gay marriage" amendment. If so, then the matter of ex post facto law again comes into play, making the amendment itself null and void. And if it is decided after the 38th state, Amendment XIV again comes into play, whereby some citizens are enjoying a certain privilege which is being denied to others.

So a simple amendment (if one can ever use the adjective "simple" when discussing a U.S. Constitutional Amendment) isn't going to cut it. The U.S. Constitution would have to be torn to shreds to work around this. There are no longer any legal means to stop same-sex marriage -- eventually universal -- across all 50 United States.

In conclusion, I therefore hark back once more to my initial question: How bad will the conservative-reactionary backlash be? What extra-legal means might they resort to when it finally dawns on them all legal means have been exhausted? We must prepare for this to get very ugly.