Blogs > Liberty and Power > The FMA: A Victimless Crime?

Jul 15, 2004 10:17 pm

The FMA: A Victimless Crime?

[cross-posted on Austro-Athenian Empire]

A correspondent asks me what rights the Federal Marriage Amendment would have violated. Gays would still have had the right to have private, non-state-sanctioned marriage ceremonies, he argues; they would simply have forfeited governmental benefits to which no one has any right anyway.

I think this is too quick. These"governmental benefits" include rights that any couple either should have (e.g., the right not to have employer-paid insurance for one's spouse counted as taxable income, or a citizen's right not to have his/her noncitizen spouse deported) or should be able to contract into (e.g., the right to make medical decisions for one's spouse when necessary). These are not special state-conferred privileges we're talking about. (Of course marriage does come with such privileges also. So does being a police officer or a physician -- but that's no argument for banning gays from being police officers or physicians. Instead we should be fighting to get rid of the privileges.)

Wouldn't civil unions solve such problems just as well as marriage? Maybe. But such a"separate but equal" approach strikes me as repellent. What would we say if black couples could have" civil unions" but only white couples could legally"marry"? (And in response to those who reject this analogy on linguistic grounds, arguing that marriages are heterosexual unions by definition, see my post from a year ago: Who Defends Marriage?.)

In the present case, however, debating the merits of civil unions is beside the point, for the Federal Marriage Amendment would arguably have banned civil unions as well. Recall the actual wording of the proposed Amendment:

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.
As I read this language, the Amendment would have forbidden states to offer even civil unions to gays. After all, it forbids construing any state law (present or future) to confer"marital status or the legal incidents thereof" to"unmarried couples or groups." I take the choice of"or" rather than"and" to mean that even laws conferring only the"legal incidents" of marital status (rather than marital status itself) are forbidden -- and that would seem to ban civil unions too.

For that matter, it's not at all clear to me that the Amendment couldn't have been used to ban private ceremonies as well. The second sentence of the Amendment is a restriction on state and federal law (or construal thereof), but the first sentence is completely open-ended: couldn't it be read as authorising the federal government to interfere with same-sex marriages wherever in the country they occur, just as the 13th Amendment is generally interpreted as authorising the federal government to interfere with slavery wherever in the country it occurs? This wouldn't be a Spoonerite reading of the FMA, of course -- it conflicts with Spooner's Seventh, Twelfth, and Fourteenth Rules of constitutional interpretation -- but we all know it isn't Spoonerites who would have been doing the interpreting. In 1886, Lillian Harman and Edwin C. Walker were imprisoned for conducting their own non-state-sanctioned marriage ceremony; would the Rick Santorums and Roy Moores of this world be more lenient on same-sex couples who did likewise?

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