Balkinization  

Tuesday, March 23, 2004

JB

Federal Marriage Amendment Revised

The sponsors of the Federal Marriage Amendment have tinkered with its language, "saying the changes were intended to make it clear that they do not seek to bar same-sex civil unions allowed by state law," the New York Times reports. (My analysis of the previous version, explaining why it would ban civil unions, appears here).

The revised amendment reads as follows:

Marriage in the United States shall consist only of the union of a man and a woman. Neither this Constitution, nor the constitution of any state, shall be construed to require that marriage or the legal incidents thereof be conferred upon any union other than the union of a man and woman.

Actually, this version still prevents *courts* (like the Vermont Supreme Court in Baker v. State) from holding that civil unions are constitutionally required, because it says that state constitutions may not be construed to require that the legal incidents of marriage be conferred on same sex couples. Civil unions bestow most if not all of the legal incidents of marriage except for the name.

The amendment would permit *legislatures* to pass civil unions laws in some cases. But there's a twist, because the proposed amendments' sponsors forgot that legislators interpret constitutional provisions too, and indeed, are normally required to do as part of their oaths of office.

The irony of the new version is that legislatures could pass civil unions laws as long as they did not believe that they were interpreting the state or federal constitution and promoting constitutional values-- such as equal protection of the laws-- by doing so. For then the legislature (or the executive official) would be construing the state or federal constitution to require civil unions.

Put another way, if legislatures sincerely believed that civil union laws were necessary to protect important constitutional values of equality and civil rights for gays and lesbians, they would not be permitted to pass such laws. On the other hand, if the legislature thought that a civil unions bill would bring more tourism into the state, that would be a permissible reason.

But of course, that's what the authors of the proposed amendment think about equal rights for gays-- they don't see it as an issue of civil rights. And that's precisely where they're wrong.




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