Justin Katz has a response to my TNR argument about the Federal Marriage Amendment. Not much by way of rejoinder. But if the following matters a great deal:
The problem with this arises when one realizes, having read the Federal Marriage Amendment dozens of times, that nowhere therein are the words “civil union.”
then I don’t see how this follows:
Consider, a state legislature could pass that CUA of ’04 granting couples merely the right to a slip of government-stamped paper with the partners’ names and a big smiley face sticker on it. There being nothing in the FMA about smiley-faced papers, and the judiciary not having the power to insist that stamping them is a service that the state must offer, we see how a legislature could do what the courts could not.
Of course, the “incidents of marriage” phrase is the rub. But here again, the principle holds, because the legislature could grant specifically enumerated rights to civil unions — without reference to marriage — thereby making those rights no longer exclusively “incidents of marriage.” Imagine that the state’s marriage licenses happen to be the only official documents that are currently marked with smiley faces. The FMA would forbid a judge from declaring that civil unions deserve to be marked with the same stickers on the basis that they are used for marriages. However, the legislature could simply define the visual approbation as a newly minted incident of civil unions
If “incidents of marriage” really has nothing to do with civil unions, then it has nothing to do with them for either the legislature or the judiciary. And the judiciary, empowered to construe the Civil Unions Act as granting some privileges to gay couples because those privileges are not incidents of marriage, must also be empowered to construe other sources of law as granting, or requiring the grant, of those privileges. Sources such as a nondiscrimination or equal protection clause in a state constitution. On what I think is Justin’s argument, the FMA would not limit the judiciary from doing so, because those privileges aren’t incidents of marriage.
The smiley-face stamp is in a sense unhelpful because it’s both symbolic and wholly novel. Any civil unions created by the legislature that included any right or privilege traditionally associated with marriage forces the judiciary to decide: have “incidents of marriage” been distributed here? If so, then the judiciary must construe the statute as not doing what it purports to do, i.e. creating civil unions. If not, then those rights aren’t incidents of marriage, and they might be awarded to gay couples on the basis of equal protection challenges without the Civil Unions Act intervening at all.
(Justin may have the last word, if he likes; I’ve got teaching and grading days in my immediate future.)
Comments are closed.