Could a Defense of Marriage Amendment Become Part of the Constitution?

Dave Winer absurdly claims that an amendement to the Constitution defining marriage as being between one woman and one man could never be adopted,

The hot story today is the President’s call to amend the US Constitution to prevent gay marriage. You heard it here first: It won’t pass. It can’t.

But the reasons Winer gives make little sense.

Homosexuality is becoming fairly accepted in the US.

Yes, but gay marriage is not “fairly accepted.” National polls show Americans oppose gay marriage by roughly a 2-1 margin. That number tends to increase rather than decrease when gay marriage is actually in the news.

Winer continues,

This amendment won’t pass anywhere outside the Deep South.

In order for an amendment to succeed after making it out of Congress, it would have to be adopted by 38 states. Care to guess how many states have passed laws that define marriage as only between one man and one woman?

That’s right, boys and girls, 38.

And the idea that opposition to gay marriage is a Southern issue only is ridiculous. Ohio adopted an anti-gay marriage law just a few weeks ago.

Which is not to say that the gay marriage amendment is likely to become adopted. Getting any amendment through is difficult, and while polls show that Americans oppose gay marriage, they are not very keen on this sort of amendment either. Currently polls show about 49 percent of Americans opposed to such an amendment.

But that’s doesn’t necessarily mean the amendment is doomed. Remember, the amendment needs 38 states, not 50 percent of the vote. It is very likely that a disproporationate number of pro-gay marriage voters are located in a very small number of states, such as California or Massachussetts. Just as George W. Bush was able to win the White House without winning a popular majority, so could an anti-gay marriage amendment be adopted even if a slight majority of Americans oppose it.

Personally, I suspect the biggest obstacle to such an amendment will be getting it past Congress. Democrats will likely adopt John Kerry’s bizarre position that he is against gay marriage but that an amendment banning gay marriage would be “divisive.”

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