Balkinization  

Saturday, February 14, 2004

JB

Federal Marriage Amendment Suffers From Drafting Errors

The Washington Post reports that the proposed Federal Marriage Amendment, which I have discussed here, is so poorly drafted that even the people who wrote it disagree about its meaning.

What is particularly remarkable is that some fairly prestigious legal talent-- including Judge Robert Bork, Professor Robert George of Princeton and Professor Gerald Bradley of Notre Dame-- was involved in drafting the FMA. Yet the language is so shoddy and confusing that I would probably flunk a student who submitted it in a final exam question. (And if you know anything about Yale Law School's grading system, that's saying a lot!).

The Post story explains that the drafting was done by a committee rather casually, without much concern for precision, and in order to satisfy various conservative constituencies. Some of the drafters believed that the language banned both same sex marriages and civil unions, others believed that it banned only same sex marriages, and still others believed that it prevented courts from holding that civil unions were required by federal or state constitutional law but did not prevent legislatures from creating such unions by statute.

In 1987 the Senate didn't think that Bork could be trusted to interpret the Constitution as a Supreme Court Justice. I must say that this episode does not speak well for his skills at drafting a constitution either.



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