Federal anti-marriage amendment

[mmcirvin]

Jack Balkin worries that the proposed Federal Marriage Amendment to ban gay marriage is cleverly worded so broadly that it could be used to prohibit many things other than gay marriage, such as laws requiring same-sex partner benefits similar to those of married couples.

Actually, I think it's probably more stupidity than cleverness, because the second sentence of the amendment makes no sense at all:

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.

It seems to me that this sentence bans all new marriages! No state law can be construed to require marital status to be conferred upon unmarried couples. But isn't that what state marriage laws do? I guess they'd be inoperative, so there would be no marriage any more except for couples already married before the amendment passed.

I wondered for a while if the broad wording might be a back-door attempt to reconstitutionalize bans on interracial marriage. But since it bans same-racial, opposite-sex marriage as well, I think it's probably just badly written.

Postscript: I suppose it would only ban state-recognized marriage, so that the effect of this, taken seriously, would take the government out of the marriage business, as some have advocated (I think this would be a bad idea, but that is another story). But I don't think that this is what the authors of this dimwitted proposed amendment really intended.

Post-postscript: Hmm, it only prevents laws that require state-recognized marriage. So I guess it would still be legal as long as some unpredictable random decision procedure is built into the process, so that no series of actions can require the marriage to occur. Maybe a binary decision-maker based on radioactive decay would be sufficient. You could tune the probability up to 99.999999% to make it almost as good as certain, and then you could use the device to marry gay couples as well!

Post-post-postscript: Oh, yeah, I forgot about the first sentence. Well, OK, the radioactive marriage box would only work on straight people. Damn.

Comments

[chicken-cem.livejournal.com]

Not only does this make no sense, its tone strikes me a baseless. All their arguments fell down in the Mass. ruling. The conservatives say marriage is just for procreation? No, it isn't! otherwise infertile straight couples shouldn't be allowed to marry, and lesbians with kids should be. Hmmm. As ludicrous as possible.

They don't have to call it marriage to give us equal rights (and responsibilities, as the Mass. ruling emphasizes). They just have to go through all the legislative steps necessary to make whatever they call it come with all the same legal rights as marriage. Because "civil unions" do not carry all those same rights and responsibilites. They could still call it a "civil union" if they actually did attach all those rights to the term. I know that's a lot of legislative brouhaha and battle, though.

Maybe by the time my partner and I have been together for another ten years, and had some kids, maybe by then the laws will have changed for good in our favor. Or, maybe by then, we'll have given up and moved to Canada, however unpleasant the weather may be there. Oh, dare to dream.

[mmcirvin.livejournal.com]

My prediction: the federal amendment fight will come to nothing, after much hot air expended. Several states may have gone the Alaska/Hawaii route by then and passed state amendments to restrict marriage to straights... but I think this is going to lose momentum in the "blue states". In the Northeast and California, there are just too many out couples and too many people who know them. Once it becomes personal, a question of what your friends and family can do rather than abstract ratiocination about what some freaky weird person you don't know might do, the attitudes change in a hurry.

The major Democratic presidential candidates are being incredibly craven about this (Dean and Clark slightly less so than the others, but they haven't really made a stand); they think it's going to be a giant hammer to beat them with. Maybe so in '04, but in the long term the effort is going to backfire on conservatives, mark my words.

[mmcirvin.livejournal.com]

By the way, Matthew Yglesias (http://www.prospect.org/webfeatures/2003/11/yglesias-m-11-19.html) and Ruy Texeira (http://www.emergingdemocraticmajorityweblog.com/donkeyrising/archives/000319.html) both go even further, and say that, contrary to conventional wisdom, opposition to gay marriage will be a liability for Republicans even in 2004, because that opposition will be dominated by people with views so extreme that they will alienate the wary middle. I'm less doggedly optimistic about '04 than Texeira, but I'm inclined to think they may have a point just because I remember what happened at the 1992 Republican convention, the moment when the cultural-right faction actually stepped over the line.

[(Anonymous)]

It only states that marriage status shall not be *required* by any law.

Personally, if it passed and I was in a position to do so (say, as a State Registrar), I'd immediately start issuing instructions that my state would not recognise marriages involving blacks and whites (miscegenation, you know), Hindus and Moslems (not real religions, you know), and Catholics (too many of them damned Papists, you know), and pointing to the amendment as justification.

If people are going to be bigots, rub their goddamned noses in it.