Balkinization  

Saturday, November 22, 2003

JB

The Conservative Case for Same Sex Marriage

I was pretty much in agreement with David Brooks' column arguing for same sex marriage, until I got to this last little bit of prose:

The conservative course is not to banish gay people from making such commitments. It is to expect that they make such commitments. We shouldn't just allow gay marriage. We should insist on gay marriage. We should regard it as scandalous that two people could claim to love each other and not want to sanctify their love with marriage and fidelity.

When liberals argue for gay marriage, they make it sound like a really good employee benefits plan. Or they frame it as a civil rights issue, like extending the right to vote.

Marriage is not voting. It's going to be up to conservatives to make the important, moral case for marriage, including gay marriage. Not making it means drifting further into the culture of contingency, which, when it comes to intimate and sacred relations, is an abomination.


Liberals have not been pushing gay rights as "a really good employee benefits plan." They have been pushing it as a civil rights issue, but that is because a central feature of equal citizenship is and should be the ability to solemnize one's most precious, intimate and long lasting commitment to another person through marriage. Slaves could be prohibited from marrying in the antebellum South. With freedom came basic rights of citizenship, which included the right to marry.

Brooks' conservative case for marriage is based on the notion that everyone (and if you read the whole column, you will see that he especially means everyone who has sex) should be married, and that it is "scandalous" that people who "claim to love each other" should not be married. On this Brooks and I disagree: I reject his insinuation that if you love another person you must also want to marry them or else you don't really love them. Marriage is not for everyone. The notion that everyone must conform in lock step to the same set of social practices is the darker side of Brook's so-called conservative case for same-sex marriage, and it conflicts with the view of many conservatives (and liberals too, I might add) that individual choice about the most important matters in one's life should be respected.

Yet the question is more complicated than simply one of liberty versus conformity. Like Brooks, I believe that stable families are a good thing, particularly (but not exclusively) because of children. For that reason, I also agree with him that it is important to encourage marriage and fidelity. But marriage is hardly a perfect institution; it still contains within it the remnants of older ways of thinking about families that can be stifiling and oppressive, particularly to women. Given its imperfections, we should not assume that if a person does not want to get married that signals that there is something wrong with them or that they are incapable of real love. That conclusion is insulting; moreover, it assumes that there is nothing wrong with the institution of marriage that could cause a reasonable person to avoid it.


Friday, November 21, 2003

JB

Is the Federal Marriage Amendment A Bait And Switch Game?

I've been thinking about the proposed Federal Marriage Amendment (FMA), whose text is available at the website of the Alliance for Marriage. The proposed text of the amendment reads:

Marriage in the United States shall consist only of the union of a man and a woman. Neither this constitution or the constitution of any state, nor state or federal law, shall be construed to require that marital status or the legal incidents thereof be conferred upon unmarried couples or groups.

The Alliance for Marriage argues on their website that this language is designed to keep courts from imposing same sex marriage on the states, and to keep legislatures from passing laws authorizing same-sex marriage, but it does not prohibit state legislatures from passing laws creating civil unions for same-sex couples.

I'm not so sure. The text is cleverly and confusingly written: The amendment says that no "state or federal law shall be construed to require" that "the legal incidents of" marriage may be enjoyed by same-sex couples. These legal incidents include a whole bundle of rights in family law, pension law, tort law, property law, and so on. What the text seems to say is that everyone who is sworn to uphold the law, including not only judges, but executive and administrative officials, would be prohibited from construing the law to give same sex couples this bundle of rights or any part of them. Since the law cannot be construed to do this, it cannot be enforced to this effect either. Private employers who give same sex couples benefits simlar to those of married couples would be able to do so, but they would not be permitted to construe any federal or state law as requiring them to do so, and no government official could enforce such an interpretation against private businesses. Thus, California's laws, which now give same sex couples many (but not all) of the same rights as married couples, and Vermont's civil unions law, which gives almost all of the same rights, would probably be made unenforceable by the Amendment's second sentence.

If the FMA had been designed to do what its proponents claim it will do, it should have been drafted as follows:

Section 1. Marriage in the United States shall consist only of the union of a man and a woman. Neither this constitution or the constitution of any state, nor state or federal law, shall be construed to require that marital status be conferred upon unmarried couples or groups.

Section 2. Nothing in the first section of this Article shall be construed to prevent either Congress or the legislatures of the several states from providing any other benefits, rights, or privileges, or combinations thereof, to unmarried couples or groups.


Thus, Congress and state legislatures may provide all of the incidents of marital status except marital status itself. As you can see, such an amendment is not particularly difficult to draft. The fact that there is a gap between what the text says and what the Alliance for Marriage says the text will do suggests to me that they are not being entirely forthcoming about the reasons for the Amendment.





Tuesday, November 18, 2003

JB

Massachusetts Supreme Judicial Court Holds Ban on Same Sex Marriage Unconstitutional


Massachusetts's highest court has struck down the state's ban on same sex marriage, following the lead of Vermont. The decision was 4-3. The Supreme Judicial Court gave the Massachusetts legislature 180 days to come up with a legislative solution to the problem. This is roughly similar to what the Vermont Supreme Court did. However, Massachusetts politicians have already been considering an amendment to the state constitution that would prohibit same sex marriage. One of the key factors in the Vermont case was that the Vermont Constitution is very difficult to amend. If the Massachusetts Constitution is like most state constitutions, is entirely possible that the Supreme Judicial Court's decision will be overruled. Both Alaska and Hawaii amended their state constitutions to prevent same sex marriage when it looked as if courts would strike down legislative bans.

The Massachusetts case will probably cause renewed calls for a protection of marriage amendment at the federal level, which will probably not succeed, because it is so difficult to amend the U.S. Constitution. More importantly, it threatens to place same sex marriage in the middle of the 2004 elections. Republican politicians will probably view this as a new wedge issue to beat up Democrats with, especially in the South. Nevertheless, it's still unclear what the fallout will be. It makes a great deal of difference that this decision has come after the Supreme Court's opinion in Lawrence v. Texas rather than before it, even though the two issues are analytically distinct.



UPDATE: David Krinsky writes:

the MA constitution is quite difficult to amend; doing so
requires a vote of two consecutive sessions of the legislature
followed by a statewide referendum. See Mass. Const. art. XLVIII.

Even if such were likely to pass--and in MA, I have my doubts, since
anti-gay-marriage amendments have been successfully defeated
before--there's absolutely no way that it can happen until today's
ruling has been in effect for over a year, even with the 180-day stay.




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