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).

5. http://www.usatoday.com/news/nation/2003-06-30-gaypoll-usat_x.htm