Goodness.

I’d forgotten about this entirely. Way back in July of 2001, my former professor Robert P. George made the first public argument I know of for the Federal Marriage Amendment. He doesn’t claim to have originated it;

Pro-marriage activists are inclined to back an amendment that would read: “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.”

But I had never heard of it before that, and I forgot about it pretty quickly thereafter. Most proposals for constitutional amendments put forward in opinion magazines can be safely disregarded. For that matter, most proposals for constitutional amendments altogether can be safely disregarded. And George is (as he would be the first to admit!) pretty far from mainstream legal thought or even mainstream Republican legal thought. This hardly seemed like the harbinger of a major constitutional fight, even in the pre-9/11 days when the idea of Congress wasting valuable time on a culture war shadow-boxing match wasn’t so far-fetched.

There’s a good reason I didn’t go into one of the predictive subfields of political science, I guess.

(By the way: I see that George’s interpretation of the amendment’s second sentence is the same as the one Ramesh Ponnuru pressed in an online exchange several months ago. I respect George– and Ponnuru– a great deal, but I still can’t see it. The second sentence appears to me to ban even the deliberate legislative creation of civil unions– because the state law creating such unions may not be construed as to create them. Somehow, George assures us, language at this level of generality can be trusted to allow the extension of hospital visitation rights to same-sex partners while simultaneously prohibiting the extension of inheritance rights. Even if that were a normatively sensible distinction, I cannot see how the text of the FMA generates it.)

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