Federal Marriage Amendment Snafus

The Washington Post is reporting on the framing of the Federal Marriage Amendment, which has been proposed in Congress to ban gay marriages nationwide, that it is so poorly written that even its proponents don't know what it would prevent and what it would allow. The article begins:

In the spring and summer of 2001, a group of conservative legal scholars including former Supreme Court nominee Robert H. Bork hammered out the proposed text of a constitutional amendment banning same-sex marriage.

Participants say it was an informal, somewhat "messy" process conducted by e-mail and telephone so the text could be announced that July by a group of religious leaders called the Alliance for Marriage. According to the alliance's president, Matt Daniels, the drafters did not worry too much about the wording, because "I don't think we expected that there would be this much attention paid to it."

Three years later, with Massachusetts on the verge of granting marriage licenses to gay couples and San Francisco city officials already doing so, more than 100 members of Congress have co-sponsored the proposed amendment, and White House aides say President Bush is about to endorse it. Yet there is no consensus -- even among its authors -- about what the text means.

So what does the amendment actually say? The text, as it appears in the Musgrave amendment that was entered in Congress the other day, is:

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.

So what does this mean? Does it ban both marriages and "civil unions" like Vermont voted for? Depends on who you ask. The White House says it doesn't prevent states from voting for civil unions that confer some or all of the tax benefits or other "legal incidents" of marriage to gay couples. That's what the Congressional sponsor, Marilyn Musgrave, says too:

"The intent from Day One has been respectful of state legislatures. I don't support civil unions, but I'm ready to have those battles state by state."

But as the article points out, two of the people who actually wrote the amendment, Robert George of Princeton and Gerard Bradley of Notre Dame, argue that it bans most possible civil union legislation as well. And the last clause of the amendment, banning all legislation that would require that the "legal incidents" of marriage be granted to anyone but a married man and woman, would certainly seem to support their contention. But then there are other anti-gay marriage groups, like Concerned Women for America, who are opposed to the Musgrave amendment because it doesn't ban civil unions.

So why all the confusion? Because those who wrote it were trying to appeal to a variety of different anti-marriage positions held by different organizations:

George acknowledged that this interpretation is not widely shared among amendment backers. When he, Bork, Bradley and others were circulating drafts three years ago, he said, they were trying to satisfy many conservative constituencies.

"Some people wanted to ban all civil unions," he said. "Some people wanted a pure federalism amendment" -- one that would guarantee that no state has to recognize same-sex unions granted by another state -- "and some wanted a pure judicial restraint amendment" that would tie judges' hands.

What I find most amusing (and most dangerous) about all of this is Bork's involvement. This "strict constructionist" who speaks so righteously of the need to follow the "original intent" of the founders is now pushing an amendment to federalize what was undeniably a state issue at the time the constitution was written, and to overrule state courts whose rulings are based solely on state constitutions. The Massachusetts and Vermont supreme court decisions had nothing to do with federal law, they were based solely on provisions in their respective state constitutions. The only thing that the federal constitution required was that each state would recognize legal marriages (and other civil contracts) that were issued and undertaken in the other states as valid and binding. That was the "original intent" of the framers of the constitution, and that is the clear meaning that should be obvious to any "strict constructionist". I think you'd be hard pressed to find a passage in any of Bork's writings that said, "We must follow the original intent of the founders to leave such matters explicitly to the states to determine, as found in the clear wording of the text of the constitution, until the states do something I don't like." Isn't it interesting how easily Bork and his fellow travelers will overthrow their ostensible legal theory, pronounced with such self-righteous vigor in distinction to all those "unprincipled" liberal judges, when it serves their aim of enforcing moral purity?