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Comparing marriage and civil unions

Karen Vernon's daughter, Keegan Vernon-Clay, joins her mother at an event supporting same-sex marriage.
Karen Vernon's daughter, Keegan Vernon-Clay, joins her mother at an event supporting same-sex marriage.

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CNN's Bill Schneider reports on how President Bush has turned the same-sex marriage issue into a debate over amending the Constitution.
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President Bush calls for a constitutional amendment to ban same-sex marriage.
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AMENDING THE U.S. CONSTITUTION
Article 5 of the U.S. Constitution establishes rules of a two-stage process required to change the document.

Step 1: Two-thirds of the members in the U.S. House of Representatives (290 members) and the U.S. Senate (67 senators) must vote to add or change an amendment, or two-thirds  -- 33 -- of the 50 state legislatures must request the change through a constitutional convention.

Step 2: Three-fourths, or 38, of the 50 state legislatures must vote to accept the change.
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Vermont

(CNN) -- When President Bush announced his support for a constitutional amendment defining "marriage as a union of a man and woman as husband and wife," he hinted that state legislatures could define "legal arrangements other than marriage" for same-sex couples.

But those arrangements are unlikely to make very many people on either side of the issue happy because it would create the question of whether all states would have to recognize the not-exactly-marriage agreements that other states create for gay and lesbian couples.

One example is Vermont's Civil Union law that took effect in 2000.

Same-sex couples in that state who obtain a civil union license and get it certified gain all the same benefits, protections and responsibilities under Vermont law that are granted to spouses in a traditional marriage.

But unlike marriages, which are respected from state to state, Vermont's civil unions are not recognized by states without similar laws.

And while Vermont's civil union couples are eligible for state benefits, the 1996 Defense of Marriage Act (DOMA) excludes them from many federal benefits.

That measure, signed into law by President Clinton, recognizes marriage only as the union of a man and a woman and defines a spouse as a husband or wife of the opposite sex.

A General Accounting Office report in 1997 identified 1,049 laws where federal benefits, rights or privileges were contingent on marital status. They include tax breaks, pensions and Social Security benefits, inheritance rights and loans.

DOMA -- while not outright banning gay marriage to get around court rulings that bar federal interference in state matters -- affirmed that states are not required to recognize a same-sex "marriage" performed in another state.

Challenging DOMA

Bush himself said Tuesday, "There is no assurance that the Defense of Marriage Act will not itself be struck down by activist courts. In that event, every state would be forced to recognize any relationship that judges in Boston or officials in San Francisco choose to call a marriage."

One argument may be that Article IV of the U.S. Constitution requires every state to give "full faith and credit" to the laws, records and judicial proceedings of other states. However, the article also allows Congress to determine the effect of those state laws as it did in DOMA.

Another point of argument could be the 10th Amendment to the U.S. Constitution which states that all rights not given to the federal government by the Constitution are reserved by the states.

DOMA's limiting marriage to one man and one woman breaks the tradition of each state determining who, when and how people could marry.

There is also a 1978 U.S. Supreme Court ruling that declared marriage to be "one of the 'basic civil rights of man' " and that the right to marry was covered by the constitutionally protected right to privacy implicit in the 14th Amendment's Due Process clause.

That ruling also said any state regulations interfering with a person's decision to marry must demonstrate a "compelling state interest."

In 1993, the Hawaii Supreme Court ruled that state could not deny same-sex couples the right to marry unless it found "a compelling reason" to do so, and ordered the issue back to the state legislature.

In reaction, Hawaii and 37 other states now have laws banning gay marriages.

But in early February, the Massachusetts Supreme Judicial Court ruled there was no "constitutionally adequate reason" to deny gays the right to marry. The ruling also ordered the state legislature to rewrite marriage laws to benefit same-sex couples.

Outraged critics immediately sought an amendment to the Massachusetts Constitution to ban gay marriages. But that is not expected to be accomplished until 2006 and by that time same-sex marriages could be law.

California does ban gay marriages but it also bans discrimination.

San Francisco Mayor Gavin Newsom cited the anti-discrimination laws when he ordered city officials to issue marriage licenses to same-sex couples. Thousands of gays and lesbians lined up at City Hall to get married.


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