Marriage amendment

Ilya Somin isomin at
Thu Feb 12 03:27:13 PST 2004

To avoid misunderstanding, I preface this comment by noting that I do NOT
support the FMA. However, I think there is genuine doubt whether Ponnuru
or Andy Koppelman has the correct interpretation of its text.

The key question is what counts as an "incident" of marriage. It is not
clear that any benefit given to married people but not single people at
Time A is necessarily an "incident" of marriage at Time B. For example, if
a state government gives lower tax rates to married people at Time A but
then changes the tax code to give the same rate to singles, the lower tax
rate would presumably no longer be an "incident" of marriage. There are at
least 4  possible interepretations:

1. Incidents are any benefits granted  to married people, even if some
other indviduals or  groups get the same benefits.

2. Incidents are any benefits granted ONLY to the married, and the
definition is frozen in time (i.e. - you can't extend the benefit to new
groups and it doesn't matter if it's extended to singles).

3. The definition is not frozen. If singles get a benefit (e.g. - adoption
rights) once available only to the married, same-sex couples can too.

4. Only those benefits truly "vital" to marriage or uniquely linked to it
in some way are "incidents" of marriage. I suspect that this is the
definition many nonexpert supporters of FMA have in mind.

Thus, there is genuine doubt as to how broad the concept of "incident" is.
In my view, this ambiguity is another reason to oppose the FMA because we
really have no idea how broadly it will be applied and what it will
actually do; depending on which judges interpret it, there could be some
very unpleasant consequences, even from the standpoint of many opponents
of gay marriage. But I suspect that the ambiguity is an intentional ploy
to attract support and paper over disagreements among social

Ilya Somin

On Wed, 11 Feb 2004, Bryan Wildenthal wrote:

> Ponnuru's analysis is patently nonsensical, and Andy Koppelman's is plainly correct.
> The proposed amendment, in the portion we are discussing, says:
> "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."
> Ponnuru says, in relevant part:
>  a legislature can decide to make a benefit that was previously an incident of marriage and extend it to others. It could, for example, say that partners to a civil union have the same benefit. When it does such a thing, the benefit ceases to be an incident of marriage. The courts and government agencies are free, under the amendment, to give effect to such a law. What the amendment does prohibit is a court's extension of a benefit that the legislature has reserved to married couples to other groups.[end of Ponnuru quotation]
> Resuming Bryan's comments:
> So Ponnuru is saying that even though the amendment expressly forbids any state law from being construed to extend any "legal incident" of marriage to gay couples, a state legislature could, in fact, accomplish just that end result, because by doing so, "the benefit ceases to be an incident of marriage."  He says courts could then "give effect to such a law."  Courts can, of course, only "give effect" to a law by CONSTRUING IT.
> Obviously, when it is declared that a law cannot be "construed to require" X, that is a GREATER prohibition than merely saying the law cannot "require" X.  The intent is obviously, and necessarily, to prohibit NOT JUST the legislature from providing by law for X, but ALSO, more broadly, to prevent any court from interpreting any law to require X.  Every law must be "construed."  The "construal" may be easier or more difficult in some cases than in others, but if one cannot even "construe" a law to require X, then clearly there is no way for the law, by any mechanism, to result in X.  In Ronald Dworkin's words, the courts are the capitals of law's empire.
> If the serious and sincere intent of the promoters of this amendment were to protect legislative statutory handiwork from judicial misinterpretation, there is either no need for it (the legislature can just amend or clarify its statutes if it thinks the judges are wrongly "construing" them), or, if the concern is that judges would improperly use their constitutional judicial review authority to "construe" (or overrule) legislative handiwork in a way the legislature could not "fix", then a much simpler and more narrow amendment could be drafted.
> It would say:  "Nothing in this Constitution shall be construed to require [this]/[any] State to recognize marriage [add: "or the legal incidents thereof" if one wants to prevent judicially/constitutionally imposed civil unions, etc] except between one man and one woman."
> There is obviously no need for a federal amendment to protect state laws and democratic preferences from state courts.  Every state has the means to amend its own state constitution to rein in its own judges if it wants to.  The only legitimate purpose of a federal amendment, from someone who sincerely wants to preserve a state option on marriage based on federalist principles, would be to provide that nothing in the U.S. Constitution shall be construed to so require [one could add "or federal law," though that would suggest irrational distrust that Congress might suddenly legislate same-sex marriage, in the teeth of popular opposition.]
> As I said in an editorial published on Jan. 15, 2004 in "Update," a Southern California gay newspaper (unfortunately, I cannot find an online copy of my editorial, they apparently do not archive), the most troubling language in the amendment is not the "legal incidents," or the business about "construing" but the utterly gratuitous language "nor state or federal law."
> I realize many backers of the amendment seem to sincerely believe that their draft will allow civil unions, etc, if adopted by legislation (or perhaps voter initiative), just not through court diktat via constitutional interpretation.  But since that goal could plainly be achieved by a much more minimal proposal, there is a heavy burden of suspicion on why they insist on including the troubling additional language, which I think most lawyers would read the way I do, even if it is confusing to befuddle a lot of non-lawyers. It is hardly a satisfying answer, as Ponnuru tries to claim, to reassure us that there would be ample "legislative history" supposedly "clarifying" that the amendment really doesn't mean, and isn't intended to mean, what the language plainly seems to say, especially since it would be so easy to redraft the language to conform to the alleged legislative intent.
> Bryan Wildenthal
> Thomas Jefferson School of Law
> -----Original Message-----
> From: conlawprof-bounces at [mailto:conlawprof-bounces at]On Behalf Of Matthew J. Franck
> Sent: Wednesday, February 11, 2004 9:40 AM
> To: conlawprof at
> Subject: Re: Marriage amendment
> That is an interesting take on the Musgrave amendment's second sentence.  For a different view of it by an intelligent journalist, see  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 mfranck at
> ***************************
> 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
> ________________________________________

More information about the Conlawprof mailing list