Marriage amendment

[Andrew Koppelman]

I'm surprised that there hasn't yet been any discussion here of the 
proposal, which President Bush has indicated he will shortly endorse, to 
amend the Constitution to prohibit same-sex marriage.  I'm currently 
shopping an op-ed on the topic, to be published whenever he makes his 
endorsement official, which contains some legal analysis.  In order to test 
that analysis against the withering scrutiny of all you harsh taskmasters, 
I am inserting it in the text below.  A footnoted version is available on 
request.


Draft:  Feb. 11, 2004

Bush's deceptive amendment

Andrew Koppelman

President Bush has now come out in favor of a Constitutional amendment to 
prohibit same-sex marriages.  Opponents have argued that states, and not 
federal law, should handle family law matters.  There is a simpler reason 
to oppose the proposal, one that even Bush's challengers haven't 
mentioned.  The amendment is so sweeping that it would go beyond same-sex 
marriage and prohibit any legal recognition of gay couples  a result hardly 
anyone wants.
The Massachusetts Supreme Court's recent decision, which held that same-sex 
marriages must be recognized in that state, came at a time when American 
society is deeply conflicted about homosexuality.  Americans oppose 
same-sex marriage by overwhelming margins, typically two to one against, 
and this is what makes Bush's move politically astute.  But with respect to 
everything except marriage, attitudes toward gay people have increasingly 
become tolerant.  Almost no one wants to harm gay people or to disrupt 
their lives or family arrangements.  Yet this is just what the proposed 
amendment would do.  It would wipe out domestic partnership laws which have 
been established democratically, which many depend on, and which are 
increasingly common throughout the country.
The proposed amendment is only the latest backlash against judicial 
decisions recognizing same-sex marriage.  When courts in Hawaii and Alaska 
seemed on the verge of such recognition in 1993, both were preempted by 
amendments to their states' constitutions.  (A similar amendment is now 
being considered in Massachusetts, although because of the slowness of that 
state's amending process, it could not go into effect before 
2006.)  Congress passed the Defense of Marriage Act, which withheld federal 
recognition from same-sex marriages and declared that other states did not 
have to recognize them.  And many states, 38 to date, passed laws refusing 
to recognize any other state's same-sex marriages.
Most Americans will agree with the first sentence of the proposed 
amendment:  "Marriage in the United States shall consist only of the union 
of a man and a woman."
But polls also show that the label of "marriage" is all that many really 
care about.  (It's mysterious why people assign such talismanic 
significance to a word, but they do.)  So long as that line isn't crossed, 
they are quite willing to let the law recognize same-sex relationships.  A 
poll in March, 2000 found that 83% of Americans thought that gays deserved 
job protection, up from 56% in a 1977 survey.  Health insurance for gay 
partners was supported by 58%, and 54% thought (contrary to the Defense of 
Marriage Act) that partners should get Social Security benefits.  When they 
are asked about giving gay couples all the same legal rights as married 
couples, the split is a third in favor, a third against, and a third who 
don't care.
The marriage/domestic partnership distinction is reflected in 
politics.  When Vermont's Supreme Court required the state to enact "civil 
unions," with all the rights of marriage but not the name, the political 
reaction was muted.  Governor Howard Dean and most of the legislators who 
supported the law were reelected, and the law is still on the 
books.  California recently followed Vermont's lead (with no prodding from 
any court) by legalizing domestic partnerships, and the national press 
barely noticed.  There are similar laws (granting fewer rights) on the 
books in Hawaii and New Jersey.  Many municipalities and cities, such as 
Chicago and New York, also recognize such partnerships.  It appears that 
you can give any rights you like to same sex couples, so long as you don't 
call it marriage.
When Bush first indicated that he would support a constitutional amendment 
to overrule the Massachusetts court, it was unclear whether he would 
propose his own language.  He has now decided to endorse the bill, 
sponsored by Rep. Marilyn Musgrave, that was already pending in 
Congress.  If the Musgrave amendment contained only its first sentence 
(quoted above) and only tried to impose a federal definition of marriage on 
the states, it would still be an unprecedented intrusion on federalism and 
states' rights.  States have always had the power to define their own 
family law.  Former Republican Congressman Bob Barr, who was the author and 
primary sponsor of the Defense of Marriage Act, opposes this amendment on 
the grounds that the states should be able to decide what qualifies as a 
marriage within their borders, and former Republican Senator Alan Simpson 
takes a similar view.  But the amendment goes much further.
The second sentence of the amendment provides:  "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."  No law or contract can be 
enforced unless it is "construed" by someone.  This provision would thus 
invalidate the domestic partnership laws of Vermont, California, New 
Jersey, and Hawaii, as well as any other, similar domestic partnership laws 
that might be enacted in the future, either at the state or the municipal 
level.  The Vermont Civil Union statute grants parties to a civil union 
"all the same benefits, protections and responsibilities under law, whether 
they derive from statute, administrative or court rule, policy, common law 
or any other source of civil law, as are granted to a spouse in a 
marriage."  The amendment would forbid any court or public official from 
construing the Vermont law to mean what it plainly says.  It might even be 
interpreted to prohibit courts from enforcing private contracts that give 
marriage-like rights to same-sex couples, since to do so would be to 
"construe" state law  here, state contract law - to confer such rights upon 
them.
         The amendment's proponents have obfuscated about the effects of 
the second sentence.  The Alliance for Marriage, the organization of the 
amendment's sponsors, claims on its website that "[t]he second sentence 
ensures that the democratic process at the state level will decide the 
allocation of the benefits and privileges traditionally associated with 
marriage."  Robert Bork, the nation's most prominent conservative legal 
scholar, has claimed that the second sentence "recognizes that liberal 
activist courts are the real problem," and leaves the question of domestic 
partnerships "where it should be, to the determination of the people 
through the democratic process."
         These interpretations depend on a strange understanding of what it 
means to say that a law may not be "construed" in a certain way.  They read 
the amendment as if it applies only to courts, and prevents them from 
construing constitutions and laws that do not on their face specifically 
say anything about same-sex marriages to require such marriages, as the 
Massachusetts court did.  But, of course, that is not what the amendment says.
         The White House has suggested that gay couples can secure many of 
the benefits of marriage, such as the right to hospital visitation, through 
civil contracts.  As we already noticed, it is not clear that even this 
would be permitted by Bush's amendment.  But even if such contracts are 
deemed valid, when your partner is injured and you're rushing to the 
hospital, you're not likely to stop at the bank to get your power of 
attorney out of the safe deposit box.
         The political logic of Bush's endorsement of the amendment is 
clear.  His political strategists have said that his re-election strategy 
will rely on turning out the vote among conservative voters, much more than 
winning over the diminishing swing vote.  So he has decided to give the 
religious right precisely what it has asked for on this issue.  But the 
strategy also depends on keeping the rest of the voters in the dark about 
how extreme a position he is taking.
         Amending the Constitution is a serious business, and there is an 
interesting debate to be had about this proposal.  But before it can begin, 
President Bush and the amendment's other proponents need to tell the truth 
about just what it is that they are proposing.  This is an inauspicious 
beginning for what is advertised as a moral crusade.



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Andrew Koppelman
Professor of Law and Political Science
Northwestern University School of Law
357 East Chicago Avenue
Chicago, IL  60611-3069
(312) 503-8431
mailto:akoppelman at northwestern.edu
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