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
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
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
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
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.
2.Oregon, Wyoming, New Mexico, Wisconsin, New Hampshire, Rhode Island,
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).