Marriage amendment

[Marty Lederman]

Well, at least that has the virtue of candor.  As I understand it, the Farris/Duncan proposal would deny a state the power to grant a same-sex partner any of the innumerable "legal rights" that the state grants a spouse.

The Musgrave Amendment could also be construed to accomplish the same thing -- but it's much more ambiguous on the question, which is what Mike Farris doesn't like about it.  Of course, there's good reason that the Musgrave amendment obscures the question rather than trumpeting it outright -- namely, that the Farris proposal would immediately be rejected out-of-hand by a vast majority of legislators and by the public.  The sponsors of Musgrave have calculated -- correctly, in my view -- that Farris's desired outcome is much more likely to come to fruition if it comes disguised as a cryptic "incidents of marriage" prohibition.
  ----- Original Message ----- 
  From: Rick Duncan 
  To: conlawprof at lists.ucla.edu 
  Sent: Thursday, February 12, 2004 10:05 AM
  Subject: Re: Marriage amendment


  Constitutional attorney Mike Farris believes that the Musgrave amendment would not stop courts or legislatures from creating civil unions. Therefore, he proposes the following language:

  "Marriage in the United States shall consist only of the union of a man and a woman. Neither the United States nor any State shall recognize or grant to any unmarried person the legal rights or status of a spouse."

  Although I could support the Musgrave amendment enthusiastically, I like the Farris language better. I think it more clearly protects the traditional institution of marriage, both from direct assaults and from attempts to dilute its significance by legislating quasi-marriages by another name.

   Rick Duncan




  Rick Duncan 
  Welpton Professor of Law 
  University of Nebraska College of Law 
  Lincoln, NE 68583-0902

  "When the Round Table is broken every man must follow Galahad or Mordred; middle things are gone." C.S.Lewis


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