Federal Marriage Amendment

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.

As such it is a particularly blatant salvo in the "culture wars" which have set Americans against each other in curious attempts to curtail each other's freedom of speech, freedom of action in cases where no harm is being done to others, equality before the law, etc. etc..

What its promulgators seem to be desirous of preventing is something like the following scenario. A homosexual couple find a church willing to give them a ceremony of marriage, or a city authority willing to issue them a marriage licence (really, I am hopelessly ignorant about how such things are done, but please bear with me). Subsequently the government refuses to recognise the marriage for tax purposes, or in some other context where the legal status of marriage makes a difference. Or the couple in fact fail markedly in their request for the legal form of marriage from the civil authorities. Or such a couple move in from Canada or Vermont where they are recognised as married. (Not sure about Canada, but it might happen.)

Then a lawsuit is brought under the principle of equality before the law, the refusal to recognise or grant the legal benefits of marriage being a material instance of unequal treatment. Then it goes up through the American court system, probably as far as SCOTUS, and the judges decide either that the Constitution allows this sort of discrimination, or that it does not. And who can trust these pesky activist judges? They might just make the wrong decision. The Defense of Marriage Act is a previous attempt to discriminate against gay marriage, which might indeed end up being ruled unconstitutional. So apparently we need this constitutional amendment, which can't suffer the fate of being struck down under the Constitution.

However, if passed, it will have the unfortunate effect of preventing any future marriages (whether heterosexual, homosexual, polygamous, polyandrous or of other varieties) from being legally recognizable at all. Read it carefully. If you are unmarried when the amendment comes into effect, you can of course get married in accordance with state law. But then the amendment says that if you try to uphold your marital status in any court whatsoever, the judge is bound to rule against you, even though you are as heterosexual as the most ardent Puritan might require. Whoever is challenging your marriage in court can point to evidence that you were once unmarried. Then you would want to point to a licence issued correctly under state law, which confers upon you marital status and "the legal incidents thereof". But the judge is not allowed to construe the state law in such a way that it would have conferred marital status on you, seeing as you were unmarried at the time.

So the amendment as written, far from 'defending' the current widely, though not universally accepted definition, would lead to the utter extinction of the legal state of marriage. Besides, in so clearly mandating unequal treatment before the law, it imports a self-contradiction into the Constitution. I think it was Pal Erdös the mathematician who claimed to have found such a contradiction already, while studying the Constitution as a requirement of taking up US citizenship. It would be entertaining, if nothing else, to see the Supreme Court trying to rule on the basis of a self-contradictory document.

The proposed "Federal Marriage Amendment" was introduced by Rep. Marilyn Musgrave (R. CO) as House Joint Resolution 56 on May 21, 2003. (Article V of the Constitution of the United States of America requires 2/3 of "both Houses" —the House of Representatives and the Senate— to vote to hold a "convention" to amend the constitution. The "convention" consists of putting the question to the legislatures of the States. Three-quarters of the States must ratify to amend.)

It has gained additional attention since February 6, 2004, when the highest court in Massachussets held that State's constitution prohibits discrimination on the basis of sexual orientation and the legislature must confer all the benefits of marital status upon otherwise qualified homosexuals.

To evaluate the claims for and against this proposed change to the federal Constitution, it is useful to recall how that Constitution works without the amendment.

In theory, one of the advantages of a "federal" system of government is that the semi-autonomous subdivisions ("States" in the United States of America) can each act as a sort of laboratory for each other. New legislative schemes can be tried out in, say, Vermont or Hawaii or California, without changing the law in other places.

A recent example of such a "laboratory experiment" was the de-regulation of electric utilities in California. At the time many other states, including mine, were also considering de-regulation. After providers demonstrated that they could manipulate the system at will to produce rolling blackouts and price gouging, nobody wants to de-regulate the same way California did. Having California as the example of what to avoid is a big improvement over blaming the problem on an abstraction ("de-regulation") or a political party or politician.

There are, of course, countervailing legal structures built into the Constitution. The Founders may have been wrong about slavery but they implemented "checks and balances" quite well. There are many checks on variety of State laws, including all of Congress' powers to enact uniform national laws, which prevail over any contrary state laws under the Supremacy Clause. See U.S. Const., Art. VII, ¶ 2.

More subtle, and more relevant to the debate about a national marriage policy, is something called the Full Faith and Credit Clause. Article IV, Section 1 of the Constitution provides:

Full Faith and Credit shall be given in each State to the public Acts, Records, and judicial Proceedings of every other State. And the Congress may by general Laws prescribe the Manner in which such Acts, Records and Proceedings shall be proved, and the Effect thereof.

As applied to marriage, this means that States have to acknowledge and enforce marriages which are lawful in other States. New Mexico, for example, is a community property state with laws inherited from the Spanish civil law system, not the English common law. In this tradition, a "marriage" by cohabitation, also known as a "common law" marriage, is not recognized. New Mexico residents must get a license and have a ceremony performed by a person legally qualifed to "solemnize" a marriage, in order to be considered lawfully married. Under the Full Faith and Credit Clause, however, New Mexico must recognize as valid any "common law" marriage which would be valid in another state. In Texas, for example, cohabitation for a certain period of time can create a lawful marriage, if the couple otherwise indicate an intent to be married, or as we lawyers say, "hold themselves out as man and wife".

Proponents of restricting "marriage" to heterosexuals have already used Congress' power to quarantine experiments with same-sex marriage, by enacting the so-called "Defense of Marriage Act", codified at 28 U.S.C. §1738C.

No State, territory, or possession of the United States, or Indian tribe, shall be required to give effect to any public act, record, or judicial proceeding of any other State, territory, possession, or tribe respecting a relationship between persons of the same sex that is treated as a marriage under the laws of such other State, territory, possession, or tribe, or a right or claim arising from such relationship.

(There is another part of the Defense of Marriage Act which, like the proposed constitutional amendment, restricts the term "marriage" to "a legal union between one man and one woman as husband and wife". 1 U.S.C. §7. Unlike the proposed amendment, however, this definition only applies to federal laws, leaving States free to experiment.)

The Defense of Marriage Act seems to violate the Full Faith and Credit Clause, until you note that Congress may determine the "effect" of one States' acts and proceedings on another. On the other hand, the Defense of Marriage Act expressly discriminates in favor of heterosexuals and against "a relationship between persons of the same sex", which may be unconstitutional if the Supreme Court decides to extend the due process principles of Lawrence v. Texas beyond private sexual conduct to marriage laws. The proposed amendment to the Constitution attempts to insulate legalized discrimination against homosexuals from these potential legal attacks.

The Defense of Marriage Act doesn't usurp entirely a State legislature's prerogative to recognize same-sex marriages, it just prevents the spread of the horrid contagion to other states. The new proposed Federal Marriage Amendment, however, purports to prevent any state from recognizing same-sex marriages. Aside from being poorly written, the amendment has little chance of passage. It is not addressed to a current problem but rather anticipates one: that the Defense of Marriage Act will be declared unconstitutional. I do not believe that this will happen.

I doubt Lawrence v. Texas extends to marriage laws. The government can argue that it has a legitimate interest in regulating marriage. Asking to be left alone in private is one thing, asking to be recognized and approved by the State as a couple is quite another. Unlike private sexual practices, which are not a legitimate concern of the state, marriage is a public institution which is interwoven into the very structure of society. Thus, even if you agree with its policy objectives, those objectives are already served by a federal statute and there is no need for a constitutional amendment. Worse, the proposed amendment is an attempt to set national social policy by referendum, and beyond the reach of the usual, deliberative political process. The last such experiment was Prohibition, and it did not fare well.

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.

When our Dear Leader mentioned a Federal Marriage Amendment in his 2004 State of the Union address, I was puzzled. Why spend time on it when there are far more important issues facing our nation? Why mention such a divisive issue at all, especially with an election coming up? I felt sure that Bush et al. had made a basic tactical error, assuming (as the Republicans tend to do, to their detriment) that the religious right is larger and more powerful than it really is. I originally assumed that this was just a bit of ill-chosen election-year rhetoric, and that Bush didn't have the numbers he needed to put it through.

Unfortunately, when I looked into it shortly after the SOTU, I started to worry. To pass a Constitutional amendment, Bush needs ratification by 2/3 of the House, 2/3 of the Senate, and 3/4 of the state legislatures. As of this writing, 38 states have passed laws banning gay marriage.¹ That is exactly the number of states Bush needs. Assuming they all vote for it, he's got the states. That's not necessarily a safe assumption, of course, since states might approve of the law in principle but balk at ceding their powers to the Federal government. But several states² have no laws at all about gay marriage or civil unions at this time. Some of these states will no doubt act to ban gay marriage, meaning the number is likely to go up.

I assume that Bush has a lot of the House, at least. It's predominantly Republican and there are very few libertarian Republicans left anymore. As for the Democrats, I expect some of them to defect, perhaps covering themselves by voicing support for civil unions. Some of them might say that they don't support gay marriage but don't see the need to amend the Constitution, but I am not sure this position will be politically viable.

I have more hopes for the Senate. Assuming most but not all Republicans toe the line, Bush would need about 20 Democrats to go his way, which is a sizable number. Here again, I expect the Democrats to straddle the fence by arguing that civil unions are the way to go. (Incidentally, name the Democratic Presidential candidates in the 2004 election who supported gay marriage--not civil unions, gay marriage.)³

I worry that the whole "civil union" argument gives false comfort to those of us who support gay marriage. The amendment would limit marriage to male-female relationships. Suppose a state creates a "Civil Union" law that grants the privileges and legal incidents of marriage (power of attorney, inheritance, joint tax returns, whatever) to gay couples. Since such a civil union would be essentially the same as marriage (except for the name), it should be unconstitutional under the cited text of the Federal Marriage Amendment. As an analogy, suppose that after the passage of the Thirteenth Amendment, the Southern states enacted a practice called "bondsmanship," which retained all the features of slavery except the name. No rational person would argue that the Thirteenth Amendment permitted bondsmanship; what is important is the practice, not the name one gives to it. Given the imprecision of the amendment, the Supreme Court would probably end up deciding exactly which and how many incidents of marriage could be given to gays before it violated the Constitution. (No doubt Sandra Day O'Connor would love this, as it would give her the opportunity to arbitrarily invent even more stuff than she did in Casey and the affirmative-action cases).

Though I generally oppose judicial activism⁴, I do find the amendment to be overly broad (not to mention silly and unnecessary), though it is nowhere near as dramatic a reworking as eliserh claims. States are indeed generally permitted to construe their own laws. However, states may not, of course, construe a law in a way that violates a Constitutional amendment, and there is nothing unusual about restricting the construal of previously-enacted laws. For example, the Fourteenth Amendment defines citizenship and prevents states from construing "citizens" to mean white people only, no matter what laws were on the books before the Civil War. This is obviously generally regarded as a good thing and not a usurpation. The critical difference in this case is that the proposed amendment restricts freedom instead of expanding it.

Nor do I see the amendment as particularly circular or tautologous. I interpret it as follows: 1) Marriage can only be defined as a union of a man and a woman. 2) Whatever rights or privileges the states grant to married people, they may not be granted to unmarried people (implicitly, gays--though as written it explicitly includes ALL unmarried people, which is preposterous). It does not say that a right is not an incident of marriage if a state grants it to both married and unmarried people.

I do not see some of the ambiguity as a problem, as Constitutional amendments do not typically bother with detailed legalese (the Fourteenth Amendment doesn't define "born," for example, but nobody really argues about kids who emerged via C-section). As for people of debatable sex, there are not an overwhelming number of these cases, though my suspicion is that the crafters would like to define them as neither male nor female and thus exclude them from marriage.

I essentially believe that the Massachussetts Supreme Court was right on the morals (though not necessarily on the law--yes, those are two different things). If we are going to do anything, it should be gay marriage, not civil unions, in part because separate but equal isn't.

It gets worse. Polls indicate that younger adults (18-29) tend to support gay marriage, while older adults (30-49) don't.⁵ Thus, in a generation or so (assuming no major change in preferences over time) most people will support gay marriage and presumably won't want this damned amendment. It will, in essence, be a lot like Prohibition--an amendment enacted with great zeal that turns into an embarrassment a short time later.

1. http://www.cnn.com/2004/LAW/02/06/gay.marriage.ap/index.html

2.Oregon, Wyoming, New Mexico, Wisconsin, New Hampshire, Rhode Island, Connecticut, Maryland.

3. The group was entirely composed of unelectables: Dennis Kucinich, Carol Moseley Braun, and Al Sharpton. Howard Dean supports (and enacted) civil unions. Everyone else straddled the fence, especially John Edwards, who supports neither gay marriage nor an amendment banning it.

4. And I do mean that; I get extremely uncomfortable when judges start making stuff up, even when I ultimately agree with the decisions on a moral level (as in Roe v. Wade, Lawrence v. Texas, etc.) Sadly, the right wingers seem to be adopting a certain zeal for this sort of thing. Such decisions tend to be rather ambiguous, results from a majority vote of nine people, and are too subject to change (Constitutional law will vary quite a bit depending on whether John Paul Stevens or William Rehnquist drops dead first). Bush v. Gore is a horrible botch for far too many reasons to go into (of course, just as the Republicans essentially ended up opposing states' rights, the Democrats found themselves in the unfamiliar position of supporting them. It's beyond me how any of these people can keep a straight face when they claim to be acting on principles rather than self-interest).