nebraskalawprof at yahoo.com
Thu Feb 12 08:25:04 PST 2004
John asks some good questions, and it is certain that many issues under the FMA (just as under most other constitutional provisions) will require judicial interpretation.
The purpose of the second sentence is to make clear that the states may not extend the status of a spouse to a person who is not a spouse. Any benefits that are uniquely marital or spousal in nature (such as the "marital estate" of tenancies by the entirety or "spousal shares" against a will) may not be extended to a non-spouse. But a person can provide for a non-spouse in his will and can own property in joint tenancy with anyone he chooses.
The great and majestic principle of the FMA is the recognition that marriage is a relationship between one man and one woman and that the states may not recognize any other relationship as equivalent to marriage. But there is still a lot of room for states to enact laws to allow for non-spouses to be protected by persons who wish to protect them. This will not satisfy those who wish to transform marriage by recognizing as marriages relationships that are not marriages; but it should be acceptable to most moderate people of good will.
jnoble at dgsys.com wrote:
At 7:05 AM -0800 2/12/04, Rick Duncan wrote:
>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.
The second sentence strikes me as tautalogical. How do you construe
"the legal rights ... of a spouse" except by reference to a state law
which confers those rights exclusively upon a spouse, e.g. a right to
elect a statutory spousal share against a will, to inherit an estate
tax-free, to file a joint state tax return, or hold property as
tenants by the entirety. If a state law is changed -- for example,
to allow any two natural persons to hold property as tenants by the
entirety -- has the state violated the proposed amendment, or is the
title option no longer a "legal right of a spouse".
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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