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A Third Way on the FMA
09/28/2003

Andrew Sullivan has blogged against the Federal Marriage Amendment again:

My reading is that the FMA would ban all types of domestic partnerships, civil unions, or any arrangements that can strengthen gay relationhips far short of marriage rights - even if they are the democratic consensus of a state, and reached through legislative means. The spin from most of the best FMA advocates (such as Stanley Kurtz) is that it would narrowly affect only court-imposed benefits and if a state wanted to create civil unions through its legislature, fine. Here's the money sentence in the Washington Times op-ed [by Michael J. McManus]:

Most experts believe the amendment would invalidate Vermont and California laws that are virtually equivalent of marriage.

Now remember that California's law is not court-imposed but passed by a duly elected legislature. The point of the FMA is clear: to prevent individual states passing any benefits to gay couples by whatever means. It's time the supporters of the FMA came clean about this.

The piece that Sullivan is missing becomes apparent when one looks at the text of the Vermont civil unions law, particularly this clause:

Parties to a civil union shall have all the same benefits, protections and responsibilities under law, whether they derive from statute, administrative or court rule, policy, common law or any other source of civil law, as are granted to spouses in a marriage.

As McManus points out in the Washington Times, the Vermont law would clearly be contrary to the FMA. However, the relevant factor is the method through which the rights accruing to civil unions are enumerated. This is in complete correlation to what I argued last time Sullivan tried to paint the FMA as undermining the rights of state legislatures and popular referenda:

The range of possible laws and consequent litigation would be as broad as from legislation enacting civil unions that track exactly with marriage all the way to legislation that specifies every contract and capability that would thereafter extend to civil unions. The process of solidifying public policy within this spectrum is exactly the debate and discussion that supporters of the FMA wish to require.

The Vermont law is an example of "legislation enacting civil unions that track exactly with marriage" and would, therefore, be invalidated not because of the specific rights that it grants, but because, using the language of the FMA, it explicitly grants those rights in their capacity as "legal incidents" of marriage. (I assume there is a similar problem with the California law.)

In this context, I'm a little puzzled by Ramesh Ponnuru's response to Sullivan:

A benefit that had previously been reserved to married couples could be legislatively granted more widely--to any two people who share a household, for example. The FMA does, however, bar governmental benefits to unmarried persons premised on a sexual relationship between (or among) them. It would not bar legislatively enacted civil unions that, say, opened various benefits to any two people living together--whether they were two brothers, two guys who sleep together, widows who had set up house, or whatever. It would bar civil unions that were limited to gay couples.

I'm curious from what source or with what logic Ponnuru derives this reading, because the sexual intentions of a couple strike me as one of many arbitrarily important factors that can define a relationship. For example, if a relationship is built on the basis of a business partnership, both partners can sign company checks. However, their spouses could not do so, nor could their brothers. In other words, the business relationship is defined as such, and the shared rights and obligations correspond to that definition. The Vermont civil union law defines civil unions thus:

1202. REQUISITES OF A VALID CIVIL UNION
For a civil union to be established in Vermont, it shall be necessary that the parties to a civil union satisfy all of the following criteria:
(1) Not be a party to another civil union or a marriage.
(2) Be of the same sex and therefore excluded from the marriage laws of this state.
(3) Meet the criteria and obligations set forth in 18 V.S.A. chapter 106.

1203. PERSON SHALL NOT ENTER A CIVIL UNION WITH A RELATIVE
(a) A woman shall not enter a civil union with her mother, grandmother, daughter, granddaughter, sister, brother's daughter, sister's daughter, father's sister or mother's sister.
(b) A man shall not enter a civil union with his father, grandfather, son, grandson, brother, brother's son, sister's son, father's brother or mother's brother.
(c) A civil union between persons prohibited from entering a civil union in subsection (a) or (b) of this section is void.

I see nothing in the FMA that conflicts with this language because it does not attribute marital rights to the relationship. All it does is define the arrangement that would invoke a newly itemized collection of rights.

Posted by Justin Katz @ 01:42 PM EST