Proposed marriage amendment will actually ban civil unions too

[pmbryant]

Despite Bush's lies about wanting to allow states the leeway to pass laws allowing gay civil unions, his proposed amendment seems likely to actually bar any such laws from being passed!

Unfortunately, as Atrios points out, the media is falling asleep on this part of this issue.



From a blog written by a Yale law professor (Jack Balkin):

http://balkin.blogspot.com/2003_11_16_balkin_archive.html#106944325583265936

Is the Federal Marriage Amendment A Bait And Switch Game?

I've been thinking about the proposed Federal Marriage Amendment (FMA), whose text is available at the website of the Alliance for Marriage. The proposed text of the amendment reads:

Marriage in the United States shall consist only of the union of a man and a woman. Neither this constitution or the constitution of any state, nor state or federal law, shall be construed to require that marital status or the legal incidents thereof be conferred upon unmarried couples or groups.

The Alliance for Marriage argues on their website that this language is designed to keep courts from imposing same sex marriage on the states, and to keep legislatures from passing laws authorizing same-sex marriage, but it does not prohibit state legislatures from passing laws creating civil unions for same-sex couples.

I'm not so sure. The text is cleverly and confusingly written: The amendment says that no "state or federal law shall be construed to require" that "the legal incidents of" marriage may be enjoyed by same-sex couples. These legal incidents include a whole bundle of rights in family law, pension law, tort law, property law, and so on. What the text seems to say is that everyone who is sworn to uphold the law, including not only judges, but executive and administrative officials, would be prohibited from construing the law to give same sex couples this bundle of rights or any part of them. Since the law cannot be construed to do this, it cannot be enforced to this effect either. Private employers who give same sex couples benefits simlar to those of married couples would be able to do so, but they would not be permitted to construe any federal or state law as requiring them to do so, and no government official could enforce such an interpretation against private businesses. Thus, California's laws, which now give same sex couples many (but not all) of the same rights as married couples, and Vermont's civil unions law, which gives almost all of the same rights, would probably be made unenforceable by the Amendment's second sentence.

(snip)

EDIT: The emphasis is my own, and not Balkin's.

[slinkerwink]

1. see?!

[pmbryant]

3. See what?

:shrug:

[StClone]

2. Why can't

'Marriage' be a religious label only acknowledged within a religion. Whereas 'Civil Union' being a legal definition that, if I read the Constitution correctly, must be protected for same sex and heterosexual relations.

[pmbryant]

5. Sounds like a reasonable solution to me

Which, of course, means that it has no chance in hell of ever happening.

:crazy:

--Peter

[tobinov]

4. the religious retort

will always be in the language of "covenant" verses "contract".

Civil Unions appear only to be a social contract to the Religious Right and will be argued as such.

If same sex couples can win the language of a covenant, i think they can win the public support and finally gain some equal rights.

just a thought.

[StopThief]

6. I disagree with the analysis.

Neither this constitution or the constitution of any state, nor state or federal law, shall be construed to require that marital status or the legal incidents thereof be conferred upon unmarried couples or groups.

The proposed amendment states that "Constitutions" shall not be construed as to "require". This has nothing to do with any future legislation that would grant various legal rights. The "only" thing that the amendment would ban legislatures from doing is referring to civil unions as marriage.

Notice the quotes around the word "only". I am not saying that is a small issue.

[pmbryant]

7. You missed the phrase "nor state or federal law"

That phrase seems to have everything to do with any future (or present) legislation.

The wording of this amendment appears to ban any legislation that would grant same sex partnerships the same legal rights granted to opposite sex partnerships. In other words, it bans gay civil unions.

--Peter

[distortionmarshall]

8. am i the only one who can read?

this preferred wording explicitly implies that no future law on any level can grant anything like civil unions as we're thinking of them....

"the legal incidents thereof" refers specifically to the stuff we're thinking of for civil unions....

it's not specified, of course, but any judicial interpretation will come to that conclusion....

[pmbryant]

9. That's how I read it too

That phrase would give the Supreme Court all the justification they would need to invalidate present and future civil union laws across the country.

:scared:

--Peter

[Scottie72]

11. I can easilyl then see

lawsuits suing companies that grant these benefits. It would then follow companies would be allowed to discriminate against gay and lesbians in housing, employment.. etc.. in other words all the rights that we have and others before me struggled to obtain would be washed away.

Amendment passes... it is game over. There is absolutely no way that a counter amendment would pass. I would then have to seriously consider leaving this country, finding a country where I would be welcomed with the possiblity of becoming a citizen. I sure as hell do not want to be a part the US if that amendment passes. I do not want to live in a country that hates me... and has it codified in the Constitution.

[pmbryant]

10. Kick

Just in case others aren't aware of this yet.

--Peter