mmcirvin | Federal anti-marriage amendment (Reply)

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.