It was bound to happen. Finally, a Washington Post reporter did the work that the New York Times’ David Kirkpatrick didn’t. In an important piece on Saturday, the Post revealed that critical authors of the current federal marriage amendment do indeed intend it to bar civil unions for gay citizens in every state. Money quote:
Two of the amendment’s principal authors, professors Robert P. George of Princeton and Gerard V. Bradley of Notre Dame Law School, contend that the opening sentence also would forbid some kinds of civil unions.
They argue that future courts would have to interpret the amendment to protect not just the word “marriage,” but also its essential meaning — in the same way that, if the Constitution forbade states from creating “navies,” they clearly could not establish “flotillas” or “armadas,” either.
The possibility of civil unions – as the equivalent or simulacrum of civil marriage for gay couples – would be removed everywhere by this amendment. Amendment sponsor Representative Musgrave, who emerged in Colorado in part because of her hostility to gays, is also opposed to civil unions. What’s fascinating is that Bradley and George believe that the first sentence alone would do this. The second sentence – barring any courts from enforcing any of the “legal incidents” of marriage to gay couples as such – is therefore perhaps best read as an attempt to ensure that this interpretation is the prevailing one.
THE REAL AGENDA: You can see how this might play out. If the FMA were to pass, civil marriage rights would be denied gay couples. But if states then passed civil union laws instead, the religious right would spring into action and sue to gut them of any force. Why do I think that’s a plausible scenario? Because they’re already doing it on a state level. In California, an anti-marriage initiative was passed keeping gays out of marriage; but a comprehensive civil unions bill was then enacted. What did the far right do? They sued. The judge, mercifully, didn’t grant a preliminary injunction against the law. But imagine that such a suit occurs after the FMA. Such a federal amendment would be an extremely powerful tool to use in state courts to shred civil unions of their protections for gay couples. It could also be used by, say, parents of a gay man to deny his spouse inheritance or access to a hospital room. So the authors of the FMA can plausibly say that a state can have civil unions, as they have. But it’s meaningless. In practice, those civil unions could contain nothing that marriage contains, because none of these “incidents” could be upheld or enforced by the courts. Yes, we’ll allow you to have a car, but you have to remove the engine and the wheels. That appears to be the real agenda. The FMA is one of the most radical attempts to disenfranchise a group of citizens in history. No air-brushing or spin or sloppy journalism should be allowed to disguise that naked and alarming fact.