More on Sen. Hatch’s alternative Federal Marriage Amendment draft:

The more I think about it, the more I dislike the first sentence of the Hatch FMA draft, even while I generally support the second. The draft reads:

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.

Here are the possible problems with the first sentence:

1. This morning, I mentioned that the sentence would almost certainly prohibit common-law marriages, which several states recognize, and which I don’t think anyone intends to just erase. I still think that’s clearly right: The whole point of common-law marriages is that they were defined by judges (though of course subject to the possibility of legislative modification, as with nearly all of the rest of the common law), not the legislature or the citizens.
2. The first sentence is pretty clearly intended to get the courts out of defining state marriage law. That would reverse the Massachusetts Goodridge decision — but it would also keep courts from doing the normal sort of gap-filling definition that courts routinely (and largely unobjectionably) do. Statutes often define some matter only in general, and leave it to courts to figure out the details. The amendment would apparently prohibit this, since it purports to take courts entirely out of the business of participating in defining marriage — not just defining it in a final, legislature-superseding way as in Goodridge, but also helping the legislature define it by interpreting vague terms in the marriage statutes, or filling other gaps.
3. If you read this literally, then this means that marriage-related bills can’t be vetoed by the governor. There is Supreme Court precedent for the proposition that “the legislature” in some parts of the Constitution (though not in all parts) means “the legislature plus a gubernatorial veto, if the state allows a gubernatorial veto” — but why enact language that’s literally not quite right, and hope that the courts will rescue you?
4. Conversely, if courts solve the governor problem by concluding that the governor is an inherent part of the legislative process, then they might also conclude that the courts are just as much an inherent part of the legislative process, even when they strike down state law under the state constitution (or interpret state law to avoid conflicts with the state constitution). A similar issue came up in Bush v. Gore, where Justice Stevens’ dissent (joined by Justices Ginsburg and Breyer) concluded that the reference to “legislature” in article II — “[e]ach State shall appoint, in such Manner as the Legislature thereof may direct, a Number of Electors” — referred to legislative judgment as reviewed by state courts:
   

   [Article II] does not create state legislatures out of whole cloth, but rather takes them as they come — as creatures born of, and constrained by, their state constitutions. . . . The legislative power in Florida is subject to judicial review pursuant to Article V of the Florida Constitution, and nothing in Article II of the Federal Constitution frees the state legislature from the constraints in the state constitution that created it. . . .

   This was indeed a dissenting opinion, not the majority; but only three Justices (Rehnquist, Scalia, and Thomas) explicitly disagreed with it. Two more Justices might come around to this viewpoint — either, for instance, Souter and Kennedy, or two new appointees — or a state supreme court (think the Massachusetts Supreme Judicial Court) might endorse the Stevens view, and the U.S. Supreme Court may refuse to hear the case. If that happens, then the first sentence won’t even achieve its apparent purpose of overturning Goodridge, and keeping state judges from mandating same-sex marriage as a matter of the state constitution.

     None of these outcomes are certain (though I think the prohibition of common-law marriages would take a lot of textual squirming for courts to avoid). But they are plausible enough that they counsel in favor of correcting the language to avoid these problems.

     My preference would be just to stick with the second sentence:

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 won’t overrule Goodridge, but as I mentioned, I think that the Massachusetts voters should save themselves from the Massachusetts Supreme Judicial Court, rather than having the rest of the country save them. But if you must overrule Goodridge, then at least do it more clearly:

Nothing in this Constitution or in any state 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.

The one bad side effect of this is that it would prevent voter-approved state constitutional amendments authorizing same-sex unions; but that’s not a huge problem, I think, since legislatures and voters would still be free to authorize such unions (or marriages) by statute, which is how marriages are generally defined. But if you really worry about that, try something like:

No provision of this Constitution or of any state 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, unless the provision explicitly provides for such an extension.

I realize that this might yield some debates about what’s “explicit” and what’s not, but I think that most of the time it will be quite clear. A constitutional provision securing to everyone “the equal protection of the laws” does not explicitly provide for an extension of marital benefits to any union other than a man and a woman. A constitutional provision providing that “People who enter into same-sex civil unions shall have the same rights as people who are married” does explicitly provide for such an extension. Even wayward courts will, I think, do a pretty good job of interpreting this.

     In any case, any of these proposals would, I think, be better than one that includes the buggy first sentence from the current proposal.

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).