Marriage amendment

Wed Feb 11 12:40:02 PST 2004

That is an interesting take on the Musgrave amendment's second 
sentence.  For a different view of it by an intelligent journalist, see 
http://www.nationalreview.com/ponnuru/ponnuru200402091407.asp.  I'm 
uncertain which interpretation I would choose.  Would it solve the problem, 
and nail down that it is JUDGES construing constitutions to create both gay 
marriage and civil unions that is the problem, if the clause "nor state or 
federal law" were stricken?  Or if merely "state or" were stricken from 
that clause?

Matt
***************************
Matthew J. Franck
Professor and Chairman
Department of Political Science
Radford University
P.O. Box 6945
Radford, VA 24142-6945
phone 540-831-5854
fax 540-831-6075
e-mail <mailto:mfranck at radford.edu>mfranck at radford.edu
www.radford.edu/~mfranck
***************************
At 10:37 AM 2/11/2004 -0600, Andrew Koppelman wrote:
>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.
>
>
>
>________________________________________
>
>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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