The Volokh Conspiracy - Civil unions and the Federal Marriage Amendment:

Michael Totten, guest-blogging at InstaPundit writes:

BUSH ON CIVIL UNIONS: President Bush said today that he favors civil unions for gays, or at least that he doesn't agree with the Republican Party platform that opposes them. This is news to me. How can he be in favor of civil unions and also back the Federal Marriage Amendment? He can't, at least not consistently. The FMA would ban civil unions as well as gay marriage. This is a flip I'll take, as long as he doesn't flop back on it.

President Bush's position is actually consistent with the FMA (whether or not either is right). President Bush said that "I don't think we should deny people rights to a civil union, a legal arrangement, if that's what a state chooses to do so" — that, in the Times' words, "the matter should be left up to the states."

The Federal Marriage Amendment would not block a state from recognizing civil unions. It provides (I quote the Mar. 22, 2004 version, S.J. Res. 30) that "Marriage in the United States shall consist only of the union of a man and a woman. Neither this Constitution, nor the constitution of any State, shall be construed to require that marriage or the legal incidents thereof be conferred upon any union other than the union of a man and a woman."

The first sentence would indeed ban same-sex marriages no matter what a state thinks. The second sentence probably bans state and federal courts from holding that a state legislature must recognize a same-sex union (which is what the Vermont Supreme Court did); and it probably bans voters from recognizing same-sex unions via constitutional amendment, though it's not clear whether the drafters intend this, and whether the provision would be interpreted this way. But neither sentence bans state legislatures — or state voters, via initiative statute rather than constitutional amendment — from recognizing same-sex unions.

So if the FMA is enacted (and note that, as I've blogged before, I do not support its enactment), the result will be almost exactly what Bush suggests: A state could still "choose to" recognize "a civil union" as "a legal arrangement." It would have to do so via a statute — just as most family law is defined by statute — not via a court decision or (probably) a constitutional amendment. But it would indeed be free to make such a choice.

UPDATE: The text I quote above is also the text of S.J. Res. 40, July 22, 2004; you can find both by searching for "federal marriage amendment" at thomas.loc.gov. An UPDATE to the original InstaPundit post reveals that Michael Totten was likely referring to an older version of the FMA -- the version I quote above seems to be the current one.

	[Eugene Volokh, October 26, 2004 at 1:41pm] Trackbacks Civil unions and the Federal Marriage Amendment: Michael Totten, guest-blogging at InstaPundit writes: BUSH ON CIVIL UNIONS: President Bush said today that he favors civil unions for gays, or at least that he doesn't agree with the Republican Party platform that opposes them. This is news to me. How can he be in favor of civil unions and also back the Federal Marriage Amendment? He can't, at least not consistently. The FMA would ban civil unions as well as gay marriage. This is a flip I'll take, as long as he doesn't flop back on it. President Bush's position is actually consistent with the FMA (whether or not either is right). President Bush said that "I don't think we should deny people rights to a civil union, a legal arrangement, if that's what a state chooses to do so" — that, in the Times' words, "the matter should be left up to the states." The Federal Marriage Amendment would not block a state from recognizing civil unions. It provides (I quote the Mar. 22, 2004 version, S.J. Res. 30) that "Marriage in the United States shall consist only of the union of a man and a woman. Neither this Constitution, nor the constitution of any State, shall be construed to require that marriage or the legal incidents thereof be conferred upon any union other than the union of a man and a woman." The first sentence would indeed ban same-sex marriages no matter what a state thinks. The second sentence probably bans state and federal courts from holding that a state legislature must recognize a same-sex union (which is what the Vermont Supreme Court did); and it probably bans voters from recognizing same-sex unions via constitutional amendment, though it's not clear whether the drafters intend this, and whether the provision would be interpreted this way. But neither sentence bans state legislatures — or state voters, via initiative statute rather than constitutional amendment — from recognizing same-sex unions. So if the FMA is enacted (and note that, as I've blogged before, I do not support its enactment), the result will be almost exactly what Bush suggests: A state could still "choose to" recognize "a civil union" as "a legal arrangement." It would have to do so via a statute — just as most family law is defined by statute — not via a court decision or (probably) a constitutional amendment. But it would indeed be free to make such a choice. UPDATE: The text I quote above is also the text of S.J. Res. 40, July 22, 2004; you can find both by searching for "federal marriage amendment" at thomas.loc.gov. An UPDATE to the original InstaPundit post reveals that Michael Totten was likely referring to an older version of the FMA -- the version I quote above seems to be the current one.