(Syndicated to Kansas newspapers Oct. 13, 2014)
This same-sex marriage business has gotten very complicated and very political very quickly, hasn’t it?
When you sit down and think it through, it’s probably this superior sovereignty business that makes it complicated.
Basically, federal law trumps state law. The U.S. Constitution is the guiding light—no matter what states might want to put into their own cute little constitutions.
That sounds a little demeaning, doesn’t it? No matter what Kansans put into our constitution by a roughly 70 percent to 30 percent vote nine years ago, it’s the federal law, as determined by the U.S. Supreme Court, that is the law of the land, including Kansas. Or…what the 10th Circuit U.S. Court of Appeals whose purview includes Kansas rules if the issue doesn’t rise to the level where the U.S. Supreme Court decides it has to step in to put things right in its view of the nuances of the U.S. Constitution.
That’s what is going to be tested in the next few weeks, maybe before or maybe after the Nov. 4 election: The Kansas constitutional amendment that defines marriage as between a man and a woman and denies any other relationship “rights or incidents of marriage” fits within the U.S. Constitution.
This superior sovereignty…well, depending on the issue before the U.S. Supreme Court or federal district court, is either good or bad to hear the politicians discuss it.
This superior sovereignty probably works out well when it comes to meat inspection. Not many folks mind that federal officials are inspecting those chicken wings which are in interstate commerce and land on plates in Kansas to make sure they are safe to eat for everyone, not just those wings served to soldiers on military bases.
But the contract of marriage, well, that and in Kansas some of that “right to bear arms” 2nd Amendment stuff, is where there is political hay to be made, or lost, in the upcoming election.
Legislators are still looking back at that 70 percent vote for the Kansas constitutional amendment that defined marriage, and puzzling out whether it makes a good bullet point on campaign hand-outs in this election year.
Times have changed. Chances are decent that Kansans still would approve that marriage amendment if it was on the ballot this year. The percentage probably would have been higher at the August primary election than at the upcoming general election next month.
But there was some political thought even way back in 2005, when a voice from your cell phone couldn’t direct you to the nearest Chinese restaurant, that the issue would be…touchy. So, the Legislature decided that the vote on the constitutional amendment would be on the city election ballot in April, not a distraction or an issue for them on the November general election ballot.
Seemed like a little legislative self-preservation at the time, or at least a strategy that wouldn’t let just a slip of the tongue in a debate change an election outcome.
But, it’s probably worth remembering that just a few state constitutional amendments back from the 15th, which is the gay marriage article, Kansas voters decided that all state officers have to take an oath or affirmation to support the constitution of the United States along with the Kansas constitution. So, maybe government leaders will remember the U.S. constitutional piece, leading to a little less acting-out by legislators whichever way the issue is decided this fall, or maybe not.
There are going to be state personnel, health insurance, pension coverage and other areas to be dealt with if the state’s constitutional prohibition of recognizing “rights and incidents of marriage” between same-sex couples is struck down.
Settle in for a complicated legislative session of same-sex marriage politicking next year.