Congressman Dan Lungren has proposed a
new Hate Amendment, which makes Marilyn Musgrave look like John Lewis:
Marriage in the United States Shall consist only of a legal union of a man and a woman.
No court of the United States or of any State shall have jurisdiction to determine whether this Constitution or the constitution of any State requires that the legal incidents of marriage be conferred upon any union other than a legal union between one man and one woman.
No State shall be required to give effect to any public act, record, or judicial proceeding of any other State concerning a union between persons of the same sex that is treated as a marriage, or as having the legal incidents of marriage, under the laws of such other State.
As any lawyers reading this diary will instantly recognize, this new Amendment is even more radical than the first. (more below the fold)
Like the Musgrave Amendment, the Lungren Amendment would strip gay Americans of all partnership rights (the "incidents of marrage"). Unlike the Musgrave Amendment, however, the Lungren Amendment engages is what is called "jurisdiction stripping." Not only can gay couples not enjoy partnership rights under this proposed Amendment, but they are not even allowed to show their faces in court to ask for it!
But I'm straight, why should I care?
Well, besides the obvious rejoinder that all people are brothers and sisters and that which wounds the least of us wounds all of us, look at the Lungren Amendment's language very carefully:
No court of the United States or of any State shall have jurisdiction to determine whether this Constitution or the constitution of any State requires that the legal incidents of marriage be conferred upon any union other than a legal union between one man and one woman.
The words "legal union" are key here. The Lungren Amendment does not just prevent gay couples from enjoying marriage rights, it prevents any couple not joined in a "legal union" (i.e. marriage) from appearing in court and asking that court to enforce those rights commonly associated with marriage.
Furthermore, because "legal incidents of marriage" is not defined, it could include any rights a person enjoys by virtue of their membership in a romantic couple. To give an extreme but entirely plausable example, many states offer romantic partners of abusive spouses, boyfriends and girlfriends an easier route to obtaining a temporary restraining order against their abusive partner. Under the Lungren Amendment, federal and state courts could be forbidden to even hear an unmarried individual's plea because their right to a TRO stems from a reliationship akin to marriage.
The Lungren Amendment isn't even consistent with conservative principles
In the link above, Lara Schwartz of the Human Rights Campaign explains how the Lungren Amendment is not only bad law, but it is entirely inconsident with the conservative principle of protecting state's rights:
It's always fascinating to see self-styled conservatives expanding federal power and limiting state power where it suits them. Fair-weather federalists argue that Congress has no business protecting people with disabilities from discrimination, discouraging violence against women, or ensuring that we have clean air to breathe and clean water to drink.
Anyone who lines up behind this measure, however, expands federal power and renders states powerless to determine what is best for their own citizens. Even if 100% of the citizens of a state wanted to protect same-sex couples, they could not pass a law to do so unless the Constitution was amended again. In other words, 2/3 of Congress and 37 states would have to support equality for same-sex couples before any state could act.
This measure robs state courts of jurisdiction to interpret their own state constitutions. Fair-weather federalists, where are you now?
. . .
A significant percentage of Americans agree that same-sex couples should have the protections and obligations of marriage, if only under another name. In fact, when you combine those who favor marriage equality and those who support civil unions or domestic partnerships, you get a solid majority of Americans, in contrast to the 25% who would relegate all same-sex couples to the status of strangers under law.
This amendment is not for those people in the middle. It would endanger any recognition of families other than legally married different-sex couples. Here's how: Section 1 limits "marriage" to the legal union of a man and a woman, but does not define marriage. Under this section, a union that purports to grant all of the rights and responsibilities of marriage in another name could be challenged as violating the ban on marriage. In fact, anti-equality activists in California sued to outlaw the state's domestic partner bill under just such a theory. Section 2 prevents any court from construing any constitution to confer "legal incidents" of marriage on anyone other than different-sex couples.
So to close, what we have here is an anti-gay, anti-family, anti-couple Amendment which will upset the Separation of Powers, and strip the states of their right to self-governance. In other words, your Republican Party in action.