Would a Same Sex Marriage Ban Amendment Cause Harm to U.S. Contract Law?

The President and some in Congress are revving up for this fall’s elections and pandering to their religious right base by pushing for a same sex marriage ban Amendment to the U.S. Constitution. Few think such an Amendment could actually pass, the votes just aren’t there.

To amend the Constitution, it takes a two thirds vote of a quorum of both houses of Congress and a three fourths vote of all the state legislatures. In fact it would be hard to find a 51% majority for writing that kind of mean-spirited discrimination into the U.S. Constitution.

But there’s another interesting issue that I think should be considered while we’re all thinking about this. Contract law.

Article 1.Section 10 of the U.S. Constitution.

1 No State shall enter into any treaty, alliance, or confederation; grant letters of marque and reprisal; coin money; emit bills of credit; make any thing but gold and silver coin a tender in payment of debts; pass any bill of attainder, ex post facto law, or law impairing the obligation of contracts, or grant any title of nobility.

Now we have a situation in this country where there are already legally married same sex couples. I’m not only talking about the ones who have been allowed to marry recently in Massachussetts and a few scattered cities. Few people are aware that same sex marriages have existed for many years in this country in another form. A couple got married in 1984. It was a legal marriage contract between a male and female. Years later the male had a sex change operation but they never got divorced, they decided to stay married. Since the time of that operation, the male has been legally and anatomically female, accepted as such by laws in every state and by federal law. They still file income taxes jointly as a married couple, with no challenge from the federal government.

In fact no one can legally break up these peoples’ marriage, or the most recent ones involving same sex couples, they are legal contracts according to every law in this country, and are therefore protected under Article 1.Section 10.

So the question that I think needs to be considered in this debate, is whether such an Amendment, assuming by some stretch of the imagination that it could be passed, would be harmful to U.S. contract law. Would it set a precedent of allowing the government to annul existing marriages, therefore harming the very institutions of both marriage and contract law?

I think we need to very seriously consider this, because it’s one more reason that such discrimination shouldn’t be embedded into the very document that’s supposed to protect the rights of Americans from abuses by government.

No, I think that this is actually and anti-marriage Amendment and it smells worse than day old dead fish left out in the Texas sun. The whole bad idea should be dumped by the President and Congress.

Years ago there was a political cartoon that depicted a donkey and an elephant wearing lumberjack outfits, chopping away at the tree of liberty from both the left and the right. Let’s quit passing laws that harm all of our human rights just to oppress certain other people.

Melissa Rhiannon is a free lance libertarian Objectivist writer living somewhere in Colorado.