It would be a good idea to reformulate the Federal Marriage Amendment that has been proposed in Congress.
The highest court of Massachusetts is likely to decide very soon that the state constitution forbids that state to deny a marriage license to a same-sex couple. The U.S. Supreme Court will then have to decide whether other states are required to give “full faith and credit” to that “marriage.”
Congress, in the Defense of Marriage Act, defined marriage as a man-woman union for purposes of federal law and attempted to excuse states from recognizing a same-sex “marriage” contracted in another state. In light of the Supreme Court decision in Lawrence v. Texas, it is virtually certain that these and any other statutory protections of marriage as exclusively a man-woman relationship will be held unconstitutional.
A constitutional amendment will be needed here. The Federal Marriage Amendment (FMA) (H.J. Res. 56) provides:
“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 second sentence of FMA would bar courts from claiming that any constitution or law requires them to mandate that “marital status or the legal incidents thereof” be conferred on a same-sex couple. It would bar Congress and state legislatures from formally recognizing as a “marriage” any union other than “of a man and a woman.” The FMA does not clearly delineate its different effects on legislatures and courts. Some of its principal backers, including Judge Robert Bork and others apparently think the FMA would allow a legislature to approve Vermont-style, same-sex “civil unions,” with incidents of marriage, as long as such a union is not called a “marriage.” Other proponents of FMA believe it would forbid a legislature to approve such “civil unions.” The FMA, unfortunately, is so unclear that either position is fairly arguable.
The “legal incidents” of marriage are determined separately by each jurisdiction. For example, if a deduction or credit on the state income tax is available only to spouses in a marriage that would be an incident of marriage. But if the benefit were cut loose from the marriage requirement and were made available to members of households generally, it would no longer be an incident of marriage. Of course, a legislature could strip marriage of all the incidents attributable to it as marriage and make all these benefits available to spouses, same-sex couples, cohabiting heterosexual couples, etc. No constitutional amendment should attempt to prevent that. The Constitution is not a code of local law.
What an amendment should do in this area is prevent legislatures and courts from conferring on same-sex couples either the name or legal incidents of marriage. It should prevent not only the formal recognition of same-sex unions as “marriage” but also a law such as Vermont which gives parties to a same-sex “civil union . . . all the same benefits, protections and responsibilities under law . . . as are granted to spouses in a marriage.”
The FMA’s apparent ambivalence toward “civil unions” will make its ratification by 38 states difficult. The campaign for its adoption would sow confusion by implying that recognition of same-sex marriage as to its “legal incidents,” is acceptable if enacted by a legislature under a different label but not if imposed by a court under any label. For this reason the FMA could receive conflicted support or opposition from religious groups that oppose legal recognition of same-sex unions under any label.
If the FMA were ratified, the long-term results would be likely to disappoint its backers. The move to legalize same-sex marriage is not simply a result of judicial activism. Numerous state and local legislatures have enacted domestic partnership laws, largely as a cultural trend and in response to homosexual activism. With the implicit sanction for such laws that might be provided by the FMA, it is likely that they would increase and that same-sex unions would tend to achieve a cultural, if not formally legal, parity with marriage.
No amendment can be foolproof against misunderstanding and evasion. But the first step in promoting an amendment on same-sex marriage should be to identify its objective. The FMA is unclear as to its objective and effect. It should be reconsidered. Other formulations are possible. An alternative Marriage Protection Amendment, for example, could build on FMA:
“Marriage in the United States shall consist only of the union of one man and one woman. Neither the United States nor any State shall recognize any other union as a marriage or as entitled to any of the legal incidents of marriage as such incidents are defined by law.”
This language would be adequate to prevent not only formal recognition of same-sex “marriage” but also the devaluation of marriage by the recognition of Vermont-style “civil unions.”
Amending the Constitution is a very big deal. Let’s not rush into it.