[UPDATE: For more recent thoughts on this, which are more critical of the proposal’s first sentence (though still supportive of the second sentence), see here.]
Sen. Orrin Hatch proposes an alternative Federal Marriage Amendment, which even I would support in principle (for reasons mentioned over the last couple of weeks):
Civil marriage shall be defined in each state by the legislature or the citizens thereof. Nothing in this Constitution shall be construed to require that marriage or its benefits be extended to any union other than that of a man and a woman.
This means that states will be free to decide this for themselves, which I think is right — it will both keep federal courts from forcing Utah to recognize gay marriage, and keep the rest of the country from forcing (say) Oregon not to recognize gay marriage.
In practice, I think that, as with many proposals, we need to think carefully about the language. For instance, wouldn’t this (inadvertently, I suspect) prohibit common-law marriages, and perhaps even void existing ones, at least in states where common-law marriages really do flow solely from judge-made rules, with no statutory authorization?
There’s nothing per se improper, I think, in marriage law being defined in the first place by judges rather than legislatures, so long as the legislatures have the final say — contract law, tort law, even criminal law has historically been defined this way in the Anglo-American system; I suspect the same is largely true of family law. And even if common-law marriages are something of an anachronism, they do seem to peacefully exist in several states (including, for instance, Alabama and Texas); do we really want to undo them?
I suppose state legislatures could quickly validate such marriages by simply enacting a statute explicitly defining civil marriage to include common-law marriage (maybe some common-law marriage states already have such statutes, but a quick search through Alabama and Texas statutes found nothing like that there). But why force states to do that? And what happens to existing marriages if states don’t validate them in time — do they just get dissolved?
In any case, this isn’t a fatal problem; the solution to it is to change the proposed draft, not reject it. But it’s worth thinking hard about such problems up front.
UPDATE: I neglected to mention one other objection, which goes more to the core of the proposed Amendment (I had thought of this and blogged about this point in the past, but just didn’t think much about it when writing the post above): I suspect that the first sentence is intended to (and is likely to) prevent state courts from forcing legislatures to recognize same-sex marriages under state Constitutions, much as the Massachusetts Supreme Judicial Court did. In addition to outlawing common-law marriages — likely an unintended result — the amendment would probably also prohibit such state constitutional decisions, likely the intended result.
I think that’s a mistake. I disagree with the Massachusetts court’s decision, but that should be a matter for Massachusetts legislators and voters to correct, not for the rest of us to mess with. I think the solution both to this problem and to the common-law marriage problem is to just use the second sentence, and drop the first.
I can’t say that I feel terribly strongly about this question. To me, it’s much more important to leave the voters and legislators of each state free of nationwide interference in this matter than it is to leave the judges free of nationwide interference. But this does make it somewhat harder for me to support the proposal. Perhaps if it’s between the Hatch proposal and nothing, I’d go with this; but since I also don’t feel terribly strongly about the need for the Amendment in the first place, even a fairly minor federalist objection may be a significant argument to me against it. So I hope that as this wends its way through the political process, the first sentence will indeed get dropped.
FURTHER UPDATE: My original post said that Utah common-law marriages might be jeopardized by this law, but lawprof Kate Silbaugh points out that Utah’s common-law marriage regime is actually endorsed by state statute, Utah Code Ann. 30-1-4.5 (1998). Nonetheless, I think my point still stands as to the other states that recognize common-law marriage but that don’t have statutes endorsing it (for more details, see my post on the subject from this morning).
Comments are closed.