The Feb. 14 Washington Post has the following exchange about the argument that the Federal Marriage Amendment may prohibit even legislatively created civil unions:
“But surely it is right to ask not only what are the intended consequences of the proposal, but the unintended ones, as well,” said Eugene Volokh of the University of California at Los Angeles Law School.
Volokh, a libertarian who has often sided with Christian conservatives in legal disputes, argues that the amendment might not prevent legislatures from enacting civil unions but would make them unenforceable.
He poses the hypothetical case of a gay man trying to add his partner to an insurance policy. The insurance administrator turns him down. The man argues that, under the state’s civil union law, he and his partner must be treated as a married couple. “Not so,” the administrator replies. “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.”
If the gay couple went to court, Volokh said, judges might well agree with the administrator.
Bork, a former federal judge, called Volokh’s argument “unrealistic.”
“This whole thing,” he said, “is really in response to courts that are running away” in favor of homosexual partnerships, not against them. “If there were any ambiguities,” he said, “courts that are inclined toward civil unions would resolve them in that direction.”
I actually agree with Judge Bork that courts that are inclined toward civil unions would resolve ambiguities in favor of validating legislatively enacted civil unions. But my question is: What about courts that are inclined against civil unions?
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