I’ve much enjoyed debating the likely interpretation of the FMA with the National Review‘s Ramesh Ponnuru. His latest piece is definitely worth reading, if you’re interested in this subject. I don’t want to rehash my past posts on the matter (which Ponnuru links to). Let me summarize this simply: Ponnuru’s response to my argument hinges, I think, on the statement that “It seems highly unlikely that, once the marriage amendment passes, the federal courts will be straining to interpret it in the way most hostile to same-sex couples,” coupled with the assertion that his interpretation is the most plausible one. I don’t entirely agree with the latter point, since I think both his and my interpretations are plausible readings of the text.
But beyond this, I’m curious: Why is it so unlikely that “federal courts will be straining to interpret [the Amendment] in the way most hostile to same-sex couples”? Some judges may strain to interpret the Amendment in the most pro-civil-union friendly way possible. Some may strain to interpret it in the most anti-civil-union friendly way possible. Still others may sincerely try to set aside their prejudices, but will still find two interpretations that are both plausible, and might resolve the ambiguity in favor of the more anti-civil-union interpretation.
What’s more, the Amendment will have to be interpreted by state judges as well as federal ones. There may be dozens of judges who’ll be called on to interpret it, before it gets to the U.S. Supreme Court (which might take decades, if lower court judges are more or less in agreement on the subject). It seems to me that rather than enacting an ambiguous amendment and hoping that judges interpret it reasonably, it would be better to enact an unambiguous one (or none at all).
To his credit, Ponnuru does propose something that would resolve the ambiguity: “Strike the words ‘state or’ from the second sentence of the amendment. That is to say, make it possible for a state law to be construed to require the conferral of benefits on same-sex couples. But continue to block the construal of a state constitution that way.” The amendment would then 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 federal law, shall be construed to require that marital status or the legal incidents thereof be conferred upon unmarried couples or groups.
And this amendment would indeed prevent the problem I describe. A state legislature or state voters would still be free to enact a state civil unions law, and state courts and executive officials would then be free to construe the law to require that certain benefits be conferred upon unmarried couples (which is what the law would by its terms command).
I would still oppose the Ponnuru Amendment on two grounds; first, I don’t see why states that do want to set up gay marriages should be barred from doing so, and, second, I don’t think the U.S. Constitution ought to protect state citizens and legislators from the overreaching of their own state courts (at least where no individual constitutional right is violated by this). State courts’ misconduct should be dealt with by the state voters and legislators through the state constitutional amendment process. But I wouldn’t be as troubled by it, because it would still leave state legislators and voters free to set up civil unions.
This also helps answer the question Ponnuru asks me: Do I think “that it is impossible to devise amendment language that would block the federal and state courts from creating civil unions while allowing state legislatures to create them”? I don’t think so, and I think Ponnuru has done a pretty good job with his proposal. I’ve only thought about his language for a brief time, and reserve the right to change my mind; but even if I do, I expect that I could suggest some helpful changes, rather than just concluding that Ponnuru’s project is impossible.
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