Amendment Politics

Andrew Sullivan , citing a recent Annenberg Center poll claims that there is limited support for an amendment to the U.S. Constitution banning gay marriage. I agree with him that such an amendment is an abomination, but I'm not as sanguine about it not passing. First, he's right that when asked "Would you favor/oppose an amendment to the U.S. Constitution saying that NO state can allow two men to marry each other or two women to marry each other?", the split is only 42 percent in favor and 49 percent opposed. But that's a very long and convoluted question. Notice the double negative--oppose an amendment saying no state can allow. My guess is that a fair number of people were confused by the question. You can see some evidence for this in the age breakdown of support and opposition:

18-29 Years: 35% favor, 58% oppose
30-44 Years: 48% favor, 42% oppose
45-64 Years: 44% favor, 47% oppose
65+ Years: 38% favor, 53% oppose

I just can't believe that people over the age of 65 are that opposed to this amendment, almost as much as those under the age of 30. In every other poll I've seen on this issue, the 65+ age group is consistently the most conservative towards gay rights issues. Indeed, in the same poll they asked people "Do you favor/oppose a law in your state that would allow gays and lesbians to marry a partner of the same sex?" Here's the age breakdown on that question:

18-29 Years: 50% favor, 43% oppose
30-44 Years: 34% favor, 57% oppose
45-64 Years: 25% favor, 67% oppose
65+ Years: 12% favor, 75% oppose

I doubt very much that people over the age of 65 are that likely to such a constitutionally nuanced position of wanting to ban gay marriage in their state, but not wanting to amend the U.S. Constitution to do likewise. My guess is that since this group tends to have the lowest education levels, they were the ones most confused by the wording of the first question.

Furthermore, in January, Annenberg asked a much simpler version of the question, "Would you favor or oppose an amendment to the U.S. Constitution that would allow marriage ONLY between a man and a woman?" With that simpler wording, 59 percent approved and 33 percent opposed--quite a different result from the more complicated wording of the first question.

Second, Sullivan also seems to think that you need an overwhelming majority to pass an amendment to the Constitution, but he's overlooking two factors. The first is intensity of support. It seems to me that those who want to amend the Constitution are motivated, at least at this point, with an intensity far outstripping the anti-amendment forces. Elected officials always pay more attention to those who are intensely committed to an issue.

Finally, when it comes to the amendment process, popular support is not equally weighted. For example, while you need a two-thirds vote to pass an amendment in the Senate, the 68 Senators from the 34 smallest states make up just over 31 percent of the population. Once past Congress, you need the approval of three-fourths--38-- of the state legislatures. The 38 smallest states only constitute 40 percent of the population. Furthermore, Republicans and conservatives are disproportionately represented in these smaller states, making them more likely to favor such an amendment.

But what about the House of Representatives? Yes, the House is apportioned by population, but given the incredible discipline of the Republican majority, the intensity of those supporting the amendment, and the divisions among Democrats on this issue, it's not inconceivable that you could get a two-thirds of the House in favor of such an amendment.

Needless to say, I don't think passing such an amendment with say 60 percent popular support would be easy or even likely, but it is possible and those who oppose such an amendment will need to organize to stop it.