Marriage amendment

[Rick Duncan]

The Farris amendment (it is not the Farris/Duncan amendment--I had no part in its drafting) would prohibit any law that equates an unmarried person with a "spouse" but it would not forbid states from passing laws that would provide any particular benefit to any person. For example, a state could adopt a policy allowing unmarried state employees to designate any person of their choice as a beneficiary on their health insurance. The stated beneficiary could be a friend, a brother, a sister, or a person with whom they have a romantic relationship. The state would not inquire into the nature of their relationship. Thus, an unmarried person could receive equivalent benefits, but they would not be triggered by the need to declare a quasi-marital relationship with the selected beneficiary. Moreover, unlike domestic partner benefits, such a policy would *not* discriminate against unmarried persons whose significant other is not a sexual partner, but "merely" a close relative or friend.
 
I think moderate people of good will should be able to understand that this is a reasonable way to protect marriage while at the same time addressing the issue of unequal benefits for unmarried persons. The politics of this issue are undergoing a significant course correction, and what might have been politically difficult a few months ago might well appear reasonable and moderate and wise a few months in the future.
 
Rick Duncan


Marty Lederman <marty.lederman at comcast.net> wrote:
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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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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