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What the FMA Will and Won't Do
07/11/2003

I'm not a legal scholar. However, there are areas — such as interpretation of language — in which literary understanding overlaps legal understanding. I mention this up front because I'm about to address an instance of legal wording the implications of which people on opposing sides of an argument are debating in fine detail. (Of course, the debate being as narrow as it is in this case suggests that the question is one that would ultimately be decided in the courts, which are building quite a reputation for declining to parse so carefully.)

Here is the proposed Federal Marriage Amendment:

Marriage in the United States shall consist only of the union of a man and a woman. 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.

Personal agenda seems to have a significant effect on how these words are read, with those who oppose the amendment making it sound as overbearingly reactionary as possible, while those who support it are attempting to decrease the size of the pill, so to speak. One reason for these perspectives is to expand or contract that potential support for the amendment. Another reason, sometimes separate, is that people are attempting to discern what their opponents' arguments will be post-enactment.

Here's Andrew Sullivan's reading, which falls on the far end of the against/overbearing side:

Note how the states are effectively barred from providing anything that resembles marriage or any of the "legal incidents thereof." It's an attempt not only to reverse any state that wants to have same-sex marriage but to invalidate all domestic partnership laws, any state-provided benefits, or any support for same-sex couples anywhere anyhow. It's a massive power-grab from the states, in an area where states have always had constitutional authority.

Ramesh Ponnuru, in contrast, responds to Sullivan thus:

There may be sound arguments against the FMA. But Sullivan's claim is ridiculous. What does he suppose the words "be construed to require" are doing in the amendment? The amendment is aimed to prevent a judge (or executive-branch official) from inferring same-sex marriage or same-sex marriage-lite from a state or federal law. It precludes a state's adoption of gay marriage (that's the first sentence). It precludes a judge's imposition of civil unions (that's part of the second sentence). It does not preclude a state legislature or popular referendum from creating civil unions or whatnot.

And, a little closer to the middle, but on the Andrew Sullivan side, Eugene Volokh offers this:

Now I realize that courts could interpret the FMA differently; courts have certainly interpreted lots of constitutional provisions in ways that don't track their literal text. But it seems to me that the reading I outline is at least plausible -- and I think it's actually the most plausible:

The first sentence mandates an unchangeable definition of marriage ("Marriage in the United States shall consist only of the union of a man and a woman"), thus prohibiting state legislators and voters from allowing gay marriages.
The second sentence bars state laws that require local and state government officials to recognize civil unions, domestic partnerships, and other attempts to track the incidents of marriage -- "[no] . . . state . . . law, shall be construed to require that marital status or the legal incidents thereof be conferred upon unmarried couples or groups" -- thus prohibiting state legislators and voters from setting up such civil union schemes.

As part of his reasoning, Volokh offers the following example:

A gay couple enters into... a union [according to a statute that requires all state and local government officials to treat civil unions as tantamount to marriages]. One partner, who works for the state, goes to his human relations director and says "Please add my partner to the insurance policy." "Nope," says the director; "I only add married people to the policy, not you newfangled gay civil unioned types." "But wait," says the employee; "you're required by state law to treat us just like a married personcouple." "Not so," says the director; "the Federal Marriage Amendment specifically says that no 'state . . . law[] shall be construed to require that marital status or the legal incidents thereof be conferred upon unmarried couples or groups.' You're telling me that I'm required to confer the legal incidents of marriage -- here, addition to the insurance plan that my department reserves only for married people -- on you, even though you're an unmarried couple. But the U.S. Constitution says that I cannot be so required."

First the easy part: gay marriage would be out, whether state or federal, whether via the judiciary or the legislature. That, in fact, is the point of the amendment. But what about "civil unions"? Well, Sullivan says that all "domestic partnership" type laws would be stricken from the books. Volokh concurs, using an example of a departmental policy involving marriage and finding "attempts to track the incidents of marriage" to be contrary to the amendment. That "tracking" word is key; it's where the mushy discussion of "what is marriage" comes in.

The first thing to do is look broadly at what married couples can do — take cosigning for loans. Well, other partnerships can cosign loans; are Sullivan and Volokh suggesting that family members' and business partners' ability to cosign loans will disappear? I don't think so. This is an extreme example inasmuch as just about anybody, to my knowledge, can cosign loans with each other. However, it does offer a point of view from which it appears that a legislature would just have to add "civil unions" to the list of relationships that yield specific capabilities. To use Volokh's example, the state government could declare that state workers' insurance policies must extend to civil unions, making them not purely a "legal incident" of marriage.

The range of possible laws and consequent litigation would be as broad as from legislation enacting civil unions that track exactly with marriage all the way to legislation that specifies every contract and capability that would thereafter extend to civil unions. The process of solidifying public policy within this spectrum is exactly the debate and discussion that supporters of the FMA wish to require. In a way, it's a gamble, on the part of those who oppose gay marriage, that states won't define the privileges of marriage away. By the same token, however, without the amendment, the odds would be further stacked against a deliberate and considered social, political, and legal evolution.

The fact that folks like Sullivan don't seem inclined to propose language that might open up the legislative window while keeping the judicial window closed suggests that what they are truly after is judicial legislation, so to speak. If that is the case, discussion of the fine points of legal wordplay is a distraction. Perhaps, if that is the case, all discussion is moot, and politics and power are the only relevant factors.

Posted by Justin Katz @ 12:27 AM EST