Ramesh Ponnuru claims I misread the proposed Federal Marriage Amendment. I don’t think I have. I think the amendment is a very clever device to strip gay couples of any civil protections whatsoever – regardless of courts, legislatures or majority decisions. Let me explain. Say Massachusetts decides by a mixture of court rulings and legislative action to legalize gay marriages. The FMA would bar this from happening – denying the state the right to determine marriage, a right the states have always enjoyed. Ramesh agrees with me on that one. But Ramesh then argues that civil union laws that gave gays some of the benefits of marriage would not be barred by FMA. He’s wrong, I think. In the FMA, states are not just constrained by not being able to construe judicial rulings as mandating equal marriage rights; they cannot even construe a state or federal law as such. No civil unions law could therefore stand up in court, if challenged. Or even a modest domestic partnership package. A reader lays out the case:
Consider Shelley v. Kraemer, 334 U.S. 1 (1948), the pre-Brown civil rights case that held that a racially discriminatory provision in a deed could not be enforced under the equal protection clause of the Fourteenth Amendment. The logic of that case is that a private agreement to discriminate on racial grounds is no longer private if you need the courts to enforce it: a court which enforced such a deed would itself be violating equal protection. The logic of Shelley, applied to the Federal Marriage Amendment, would require that private legal arrangements that gay men and lesbians now make to provide the legal incidents of marriage could not be enforced in court. For example, suppose A gave his partner B a durable power of attorney to make health care decisions for him. If a hospital thereafter chose to ignore B’s directives with respect to A’s health care, B would have no redress, because a court would be barred by the FMA from enforcing the power of attorney. (Likewise if A and B agreed to make reciprocal wills, etc.) I’m sure that the proponents of the FMA say that it would simply maintain the status quo. No one should believe them.
Yep, the amendment is that extreme. Another reader weighs in:
Suppose a state enacts a statute that:
(1) establishes civil unions, which may include same-sex partners;
(2)-makes it incumbent upon employers to extend the same domestic partnership benefits to employees’ “civil union” spouses-that it does to employees’ “marriage” spouses; and
(3) creates a cause of action against any employer that fails to comply with (2).
Suppose then that a gay man enters a civil union with his partner, requests the domestic partnership benefits, and the employer refuses.-Employee sues.
-It seems to me that under the statute, in order for a court to grant relief, it will have to find that the language of the statute conferrs “legal incidents of marriage” on an unmarried couple.- Just because the “plain reading” of the statute provides a legal incident of marriage doesn’t mean that the court is not “construing” the statute when it grants relief.- The FMA would prohibit the court from doing that, making parts (2) and (3) of the statute unenforceable.- At that point, what’s left of the civil union that distinguishes it from a novelty marriage license won at a carnival?-
But that’s precisely the purpose of the amendment. It needs to be exposed for what it is: an unprecedented attack on states’ rights, on minority enfranchisement and the Constitution. Next week, it will be wheeled out as a response to the Massachusetts Court ruling. Don’t believe the mollifying language of its backers. They mean business and they have gay couples in their sights.
The Dish 