The process of amending the Constitution was purposefully made difficult by the Framers. Since it was originally drafted in 1787, the Constitution has been modified just 27 times. The amendment language must first be approved by two-thirds of each Congress, then must be ratified by legislatures in at least 38 states within the next seven years. That means that 16 Democrats in the Senate would have to be found to support this amendment, even if every Republican senator voted for S.J.Res. 1. And, in addition to a unanimous Republican vote in the House of Representatives, some 60 Democratic votes would also be required to support it.
A Constitutional amendment to ban same-sex unions, though well intended, faces a higher series of obstacles even if it was passed by the Congress and allowed to proceed to the states. For example, by either no vote or by rejecting it, any 13 state legislatures can defeat it. Thus, an amendment favored by as many as 98 percent of the population could theoretically be killed by two percent of the American people, strategically distributed in 13 small states. And, it would be of little difficulty to do so by a small energized minority. As a result of this, those who would claim popular support for same-sex unions losing a fight over the Constitutional Amendment on Marriage, which is virtually certain, would only enshrine these pseudo marriages.
What would be more effective is if the current Congress would enact a marriage privilege protection statute that would allow immediate action to protect traditional marriage instead of the lengthy process of ratifying a Constitutional amendment on marriage.
Same-sex “marriage” has been brought into the federal arena as a result of the Supreme Court's ruling in Lawrence v. Texas. Same-sex unions will be nationalized if the Supreme Court upholds the Massachusetts Supreme Judicial Court's decision to legalize same-sex unions. For states or local officials acting “under color of law” to issue a marriage license to individuals of the same sex, a federal marriage privilege protection measure would make it a criminal offense. The Fourteenth Amendment, supported by the Republican Guarantee clause (S. 4 of Art. IV) and The Necessary and Proper clause (par. 18, S. 8 of Art I) gives this Congress the Constitutional authority if it were to pass this measure.
One must consider in American legal practice the nature of the marriage relationship from antiquity down through centuries of experience and the thought that shaped its meaning. A relationship characterized by privilege is the marriage union. Recognized to have a privilege “to have and to hold” the person of the other is each spouse. No one else may claim a right to join that union because the privilege is exclusive.
In the sense that the Declaration of Independence speaks of regarding inalienable rights: “among these [implying there are others] are life, liberty, and the pursuit of happiness,” the marriage is privilege prior to government. To perpetuate the species, families existed or what would have disappeared were natural rights themselves. To “secure” rights created by “Nature and Nature's God,” is the purpose of government, not to dispense them. Governments enforce laws to place limits on how people exercise their natural privilege and rights. For example, by jailing or executing criminals, the rights to liberty and life can be constrained. Since the family is central to the well-being of society, the marriage privilege must be regulated. It has never been claimed that a person should be permitted to marry anyone he or she chooses by any nation. A social privilege par excellence, a relationship to be enjoyed only by specific individuals permitted and protected by law is the legal requirement of what a marriage license grants.
What this would do is bring to the forefront the issue of same-sex “marriage.” Unfortunately, as is already being done, incumbents will be allowed to obscure their position by the long delay that is associated with getting an amendment through Congress. To vote on divisive issues such as homosexual “marriage,” neither Republican nor Democrat lawmakers are inclined to do so. The rhetoric has already started. For example, some in both parties have said they support traditional marriage, but have found a multitude of objections to the amendment such as altering the Constitution which should not be tampered with to decide the issue, the need for more time, and the fact that such matters should be left to individual states to decide. On the other hand, a marriage privilege protection statute would prevent the party division between Republicans and Democrats from being buried in platform statements because every senator's and representative's vote would be on record.