Last week, President George W. Bush called on Congress “to promptly pass” and send to the states for ratification an amendment to the Constitution that would ban gay marriage anywhere in the United States. If history is any guide (as it often is), the Constitution will stay the way it was before the Massachusetts Supreme Judicial Court and the San Francisco mayor ushered in the era of gay marriage. It is truly difficult to amend the Constitution; it has only been done 27 times, and the bulk of those have come in clusters: The Bill of Rights (1-10) was adopted immediately, the Reconstruction Amendments (13-15) came in the aftermath of the Civil War, and the next four (16-19) were Progressive Era amendments adopted during Woodrow Wilson’s two terms. That leaves only 10 others (and one of those, the 27th, on congressional pay raises, was sent to the states with the original Bill of Rights).
It is both substantively and procedurally difficult to amend the Constitution. First, there must be broad agreement on what the amendment is supposed to do. In the case of prohibiting gay marriage, the relevant question is whether that ban would extend to giving legal status to something less than marriage, the so-called civil unions. There’s already dispute among the supporters of an amendment over this issue. White House officials say that Bush supports the proposal introduced last year by Republican representative Marilyn Musgrave of Colorado. That reads: “Marriage in the United States shall consist only of the union of a man and a woman. Neither this constitution nor the constitution of any state, nor state or federal law, shall be construed to require that marital status or the legal incidents thereof be conferred upon unmarried couples or groups.” Bush said he desired an amendment that would fully protect marriage—which the Musgrave proposal does—”while leaving the state legislatures free to make their own choices in defining legal arrangements other than marriage.”
The Musgrave proposal is hardly clear on giving the states leeway short of marriage. Does the statement that no law shall be construed to require “the legal incidents” of marriage be conferred on unmarried couples leave room for a state to allow those legal incidents—such as hospital visitation rights—to be conferred on gays? At this moment it is impossible to know. It may be that hearings will clarify the point, or it may be that clearer language will be drafted. Yet agreeing on language may prove to be the easiest part of moving an amendment along in the process. While Bush has called for prompt action, the Constitution does not give the president any role in the amendment process. He may be able to set an agenda based on his political stature, but that is it. By the terms of Article V, an amendment goes to the states for ratification when it is passed by at least a two-thirds margin in both the House and the Senate.
Getting a two-thirds vote, even in less polarized eras, has proven difficult. There have been more than 10,000 proposed amendments introduced in Congress. Only 33 have received the necessary votes in both houses, even when there has been substantial national support. Thus, for about four decades, polling data has shown that more than 70 percent of Americans favor voluntary prayer in public schools. During the same period, there have been several serious attempts to pass an amendment allowing voluntary prayer in the schools. Only twice, in 1966 in the Senate and in 1998 in the House, has a proposal gotten out of committee, and although it pulled a majority each time (49-37 and 224-203), it fell far short of the requisite votes. Similarly, after the Supreme Court held that flag burning was constitutionally protected, there was an outcry demanding an amendment. But that never made it either.
Of course sometimes it is clear that the Constitution needs amending, and an amendment sails through Congress. That was the case with the Equal Rights Amendment in 1972. President Nixon and former president Johnson supported it, and there was only a handful of negative votes in the House and Senate. So it was off to what was assumed to be easy ratification by three-quarters of the states. Within a year, 30 of the necessary 38 states had ratified E.R.A. But then the process slowed. There were 33 ratifications by the end of 1974, an additional one in 1975, and one more in 1977. Congress then extended the time for ratifications into the 1980s, but that did not produce any more states. Only the weird Twenty-Seventh Amendment (proposed in 1789 and finally gaining the last necessary state in 1992) has been ratified with delays; if an amendment cannot sail through the states quickly, then it is destined to fail. Thirty-eight required means only 13 negatives by either house of a state legislature will block an amendment.
The last amendment (not counting the 27th) to be adopted was the one in 1971 that allowed 18-year-olds to vote in state elections. There was no opposition because a law change had already given them the vote in federal elections. Furthermore, the belief that if someone was old enough to be drafted to Vietnam, then he was old enough to vote was pervasive.
Two other post-World War II amendments were sparked (as was the proposed ban on gay marriage) by specific events. Republicans smarting at President Franklin D. Roosevelt’s breaking of the two-term tradition sent the Twenty-Second Amendment to the states, and it was ratified in 1951. The Twenty-Fifth Amendment, on presidential succession and the nomination of a new vice president, was ratified four years after President John F. Kennedy’s assassination. I cannot escape the feeling that a ban on gay marriage has more of the feel of the proposed flag-burning or school-prayer amendments than those defining the two highest offices in the land.
There is one possible means of state ratification that might lessen the chances that 13 state chambers could oppose a ban on gay marriages. Article V offers two ways that Congress can choose for the states to ratify an amendment. Twenty-six of the 27 amendments have been ratified by (majority votes in) state legislatures. But Congress can specify that ratification must be by conventions specially selected for that task. The one time that Congress told the states to use conventions was with the Twenty-First Amendment, which repealed Prohibition (and the Eighteenth Amendment). Congress wanted a single-issue vote on who the ratifiers would be because it believed (accurately) that the wets would prevail over the drys if no other issues intervened. Similarly here, Congress might call for conventions in the belief that on the single issue of banning gay marriage, the voters would be more likely to choose people who supported the ban if an election had only that issue on the ballot.
The framers of the Constitution knowingly created a super-majority requirement for amendment. They intentionally made amendment difficult. It is doubtful, however, that they could have foreseen how difficult it would prove to be. But it is difficult, and that is why the smart money will bet that Bush’s proposal will die somewhere along the arduous process.
L.A. Scot Powe Jr. holds the Anne Green Regents Chair at the University of Texas, where he teaches in the School of Law and the College of Liberal Arts. He is the author of four books, most recently The Warren Court and American Politics.