Ramesh Ponnuru defends a particular proposed Federal Marriage Amendment, which reads:
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 state or federal law, shall be construed to require that marital status or the legal incidents thereof be conferred upon unmarried couples or groups.
The amendment, he argues (responding in large part to Andrew Sullivan’s criticism, will only prohibit (1) a state legislature’s or court’s recognizing gay marriages under the name marriage, and (2) “a court’s extension of a benefit that the legislature has reserved to married couples to other groups.” It will not prohibit legislatively-created civil unions through which the legislature extends various benefits to gay couples.
I don’t think that’s quite right. As I’ve argued earlier, imagine that the New York legislature or the California voters decide to create a “civil union” statute, under which gays can enter into such a union. The statute then requires all state and local government officials to treat civil unions as tantamount to marriages, for purposes of child custody, divorce, intestate succession, wrongful death litigation, and so on.
A gay couple enters into such a union. One partner, who works for the state, goes to his human relations director and says “Please add my partner to the insurance policy.” “Nope,” says the director; “I only add married people to the policy, not you newfangled gay civil unioned types.” “But wait,” says the employee; “you’re required by state law to treat us just like a married couple.” “Not so,” says the director; “the Federal Marriage Amendment specifically says that no ‘state . . . law[] shall be construed to require that marital status or the legal incidents thereof be conferred upon unmarried couples or groups.’ You’re telling me that I’m required to confer the legal incidents of marriage — here, addition to the insurance plan that my department reserves only for married people — on you, even though you’re an unmarried couple. But the U.S. Constitution says that I cannot be so required.”
[The following added after I wrote the original post:] Then the employee goes to court to demand the benefit. “Sorry,” the judge says. “The Federal Amendment bars me from construing the state law to require that this benefit be conferred on you. Yes, I know that the statute says exactly that. But the FMA doesn’t allow to construe the statute that way, even if that’s the statute’s clear meaning. You’d be entitled to get the benefit under the statute, but the FMA trumps the statute. [End addition:] So the FMA would block not just gay civil unions imposed by judges or executive branch officials, but also normal state laws adopted by legislators and voters.
Ponnuru responds:
[Under the FMA], a legislature can decide to make a benefit that was previously an incident of marriage and extend it to others. It could, for example, say that partners to a civil union have the same benefit. When it does such a thing, the benefit ceases to be an incident of marriage. The courts and government agencies are free, under the amendment, to give effect to such a law. What the amendment does prohibit is a court’s extension of a benefit that the legislature has reserved to married couples to other groups.
So a legislatively created civil union statute that (for instance) completely tracks all the benefits and burdens of marriage wouldn’t have to be “construed to require that . . . the legal incidents [of marital status] . . . be conferred upon unmarried couples” — rather, it will simply be construed to eliminate any “incidents” of marriage under state law, except for the label “marriage.”
This is a creative argument, but I don’t think it’s quite right. First, if this argument is accurate, then the FMA probably wouldn’t even block judicially created civil unions, the very thing that Ponnuru says it would do, since Ponnuru’s argument likely applies equally to judicially and legislatively created civil unions. After all, if a court says “Under our state Constitution’s equal protection clause, discrimination against gay couples is not allowed; therefore, committed gay couples must get the same benefits and burdens as married straight couples,” then it’s likewise simply eliminating any “incidents” of marriage under state law, except for the label of “marriage.” These benefits and burdens have “cease[d] to be an incident of marriage,” and can thus be awarded to gay couples. (This isn’t an open-and-shut argument; maybe courts can come up with some way of distinguishing judicially created civil unions and legislatively created civil unions for purposes of the second sentence of the FMA. But I think that such a distinction would be hard to support.)
Second, “the legal incidents of marriage” is an ambiguous phrase. It could be interpreted the way that Ponnuru and the scholars he cites suggest, as “those things that state law provides only to married couples.” Or it could be interpreted as “those things that law has traditionally provided only to married couples,” or even “those things that married couples generally do.” See, e.g., Collins v. Guggenheim, 631 N.E.2d 1016 (Mass. 1994) (saying that “We have not permitted the incidents of the marital relationship to attach to an arrangement of cohabitation without marriage,” which suggests that applying some such incidents to cohabitation would be “permitt[ing] the incidents of the marital relationship to attach to [a nonmarital one],” rather than that it would somehow destroy the incidents’ status as incidents of marriage); McGruder v. Frank, 825 F.Supp. 1300 (S.D.Ohio 1992) (“Unfortunately in our society domestic violence is probably the most prevalent form of interpersonal violence, including violence between persons not legally married but involved in relationships which have some of the same incidents of marriage.”); Cook v. Cook, 798 S.W.2d 955 (Ky. 1990) (Lambert, J., dissenting) (“By its decision, the majority has encouraged spouses receiving maintenance to refrain from marriage, safe in the knowledge that they may establish relationships which have all of the incidents of marriage if only they maintain the fiction of separate places of dwelling.”). In all these cases, the courts were treating “incidents of marriage” as something that even unmarried couples may possess — and when that happens, the right or behavior does not “cease[] to be an incident of marriage”; it remains an incident of marriage, though one that unmarried couples possess together with married ones.
And if courts do treat the ambiguous phrase “incidents of marriage” as referring to the benefits, burdens, and practices that have traditionally accompanied marriage, then legislative civil union statutes may well become unconstitutional or at least unenforceable: As I said before, government officials would be prohibited from construing the statute according to its literal text, as providing some of the traditional benefits of marriage to unmarried couples. And if someone goes to court to challenge the official’s refusal to provide such benefits, then the court court would likewise be forbidden from construing the statute according to its literal text.
When you’re deciding whether to support a proposed amendment, I think it’s important to think about these ambiguities. Even a 50% or a 25% chance that an amendment will be interpreted to
yield bad results might offer enough reason to oppose it (though of course much depends on how bad you think the bad results would be, and how good the good results would be). And if the amendment is still in the drafting stages, why not modify it to avoid these ambiguities in the first place?
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