There’s a similar shell-game going on with the proposed Federal Marriage Amendment. The line from social conservatives is that this is a “moderate” measure designed only to prevent courts from imposing equal marriage rights on unwilling populations. It is nothing of the kind. There are two pieces worth reading on this – so you can make up your own mind. One is Ramesh Ponnuru’s attempt to parse the language of the amendment to make it seem as if barring “the incidents of marriage” from civil unions would not gut civil unions. Why? Because such “incidents” – like the right to inherit a spouse’s property or visit him in hospital – somehow cease to be “incidents” of marriage as soon as they are included in civil unions. Huh? Eugene Volokh, who has no dog in this hunt, demolishes that case.
THE REAL DEAL: And you have to ask yourself: if Ramesh were right about the amendment, why would the religious right support it? If the FMA merely bars the name “marriage” from substantively identical cvil unions, why wouldn’t the first simple sentence restricting the word ‘marriage’ to heterosexuals, be enough? The FMA, to recap, stipulates that courts may not construe either a state constitution or any state law to confer marital “incidents”. Notice the state “law.” So take California’s civil unions – passed as a law. As soon as this FMA is passed, say there’s a fight somewhere over whether a spouse has a right to visit his husband in hospital. Anti-gay or simply hostile parents sue to bar access for the spouse. A court adjudicates. Under the FMA, the court is bound not to construe the civil union law as giving any “incidents of marriage” to the civil union spouse, as it would to a married spouse. Game over. Civil union gutted. Ramesh, who seems like a decent fellow, may simply be unable to credit the motives of his anti-gay allies. But they are very clear. They want to ban gay marriage and any civil recognition of gay couples under any name. These “Christian” activists are lying about their amendment. And the press, so far, is swallowing their lie. (Meanwhile, the British Tory leader, Michael Howard, adopts John Kerry’s position and embraces “civil partnerships” for gays.)
The Dish 