I’ve argued before that the FMA might end up being interpreted even to ban legislatively or popularly enacted state civil union statutes. (I also have some other objections, but the democratically created civil unions point is the one that seems to have interested the most people.) Someone asked what I would think of a modified version that would strike “state or federal law,” and would thus read:
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 marital status or the legal incidents thereof be conferred upon unmarried couples or groups.
As I mentioned in a related post on Monday, such a change would largely take care of that particular objection. State legislatures and state voters would thus be allowed to enact a state civil unions statute, 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). That’s good: State voters and legislators should be free to make their own decisions about civil unions, unconstrained by a federal constitutional mandate.
Courts might still strike down any hypothetical future state constitutional amendments that explicitly call for civil unions (for the same reasons that I originally gave as to state statutes), and that’s a legitimate theoretical objection even to the revised version. But since statutory civil unions are politically much more likely, and would be allowed under the revised version, it’s not that much of a practical objection.
Comments are closed.