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Giving the Amendment the Sullivan Treatment
11/28/2003

There's a reason I try to avoid reading Andrew Sullivan's writing about social issues. Every time I do so, I come across arguments so horribly distorted, yet certain to be taken seriously by some, that I feel compelled to address them. Such is the case with his poorly characterized "fisking" of the Federal Marriage Amendment. Not to be subtle about it, Sullivan's piece is either embarrassingly incorrect or deeply dishonest. I don't see any middle ground.

Here's the FMA as it now stands:

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. Neither the federal government nor any state shall predicate benefits, privileges, rights, or immunities on the existence, recognition, or presumption of sexual conduct or relationships.

Regarding the first sentence, Sullivan writes:

This sounds simple enough. But the word "marriage" is extremely broad.

Sorry to break the flow so soon, here, but we really should take a moment to stand in awe of the audacity of this comment. A man who has argued for more than a decade that marriage — which is everywhere defined as involving members of opposite sex — really means a relationship between two sexually involved people of any gender is complaining that the word is "extremely broad" within this amendment that specifies its meaning. One must marvel. Moving on:

Its main problem is that it conflates both civil marriage and religious marriage. By not being specific that it refers to civil marriage and civil marriage alone, the wording of this first sentence could be subject to considerable doubt. Could this mean that a church that decided to marry two people of the same gender would be violating the Constitution? Isn't civil regulation of religious marriage against the First Amendment?

To be sure, we should give Sullivan credit for being sufficiently creative to insert confusion where it does not inhere. But then, that credit must be rescinded when we note that he answers his own question as he picks up rhetorical steam. The Constitution is civil by its very nature, and obviously the First Amendment already makes the clarification that Sullivan desires. (I've got some suspicion that Sullivan calls for this change for some deceptive reason, but whether it is spitting out misinformation in order to defeat the amendment, adding verbiage that can later be distorted, or both, I'm not sure.)

Now on to the second sentence of the FMA. Here's Sullivan:

Why this provision, one might ask? Isn't the first sentence clear enough? Ah, but the fundamentalist right is not content merely to ban civil marriage for gay couples in the United States. They want to ensure that gay couples get no civil recognition at all. ...

Some have argued that it only prevents state or federal courts from imposing marriage rights on unwilling populations. But the wording is clear enough. It doesn't simply ban courts from construing state constitutions or the federal constitution to exclude gay couples. It includes state and federal law as well. And it doesn't say, "judicially construe." It says simply, "construe." The intent is clear: to stop any state variation on the subject of marital or couple rights, to impose on the country one single model for civil relationships--heterosexual marriage to the exclusion and abolition of all others. That, of course, means civil unions for heterosexuals as well.

This is a perfect illustration of what I meant, the other day, when I suggested that, among those who support gay marriage, "Contested assertions are reasserted as if they had not faced criticism." I've written before (here, for one) that Sullivan is simply wrong; this sentence does not "impose on the country one single model for civil relationships." Of itself, it would merely require that civil union laws (or any other "couple" laws) be designed without reference to marriage.

It is probable that Sullivan has come across this argument before, whether from me or somebody else, so one might wonder why he doesn't explain it as something that "some have argued." But then, one might stop wondering when it is noted that Sullivan now declares that "the intent is clear," whereas several months ago, he was arguing that it could "provoke genuine and deep disagreement" and therefore represented a "vague and sweeping amendment." Vague. Clear. Whatever.

Because Sullivan ignores what this sentence does clearly do, he is completely befuddled by the final, newly added sentence. Before addressing his analysis, which he uses as a springboard into delirious demagoguery, let's take another look at the sentence and interpret it based on its own language rather than Sullivan's:

Neither the federal government nor any state shall predicate benefits, privileges, rights, or immunities on the existence, recognition, or presumption of sexual conduct or relationships.

What this clearly means, as a pure function of the words and grammar, is that the government cannot base (i.e., predicate) the allocation of benefits on what a couple may or may not do in the bedroom. In essence, this merely adds reference to sexuality to my reading of the second sentence: "civil unions" could not be described in terms of marriage nor in terms of sexual or romantic relationships. There is probably room for discussion about whether this would allow a state to institute a law that specified most of the particulars tracking closely with homosexuality; I'd argue that it would. It seems to me that a state could specify that the arrangement is exclusive, limited to people of the same sex, involves people who share a household, and excludes immediate family members. In other words, something akin to the Vermont description of civil unions would, for essentially the reasons that I've previously argued, still be possible.

If you think about it, while there is certainly a social presumption of sex (and parenthood) for married couples, nothing in the law prevents a man and woman who are friends from getting married. This would still be a social possibility for gay unions. All the new sentence forbids a legislature or judiciary to do is to guess at whether the pair is romantically involved. Frankly, I think federal law as it currently exists would ultimately require that straight men (or women) who wanted to engage in a civil same-sex relationship be allowed to do so, for the same reason that homosexuals aren't currently prevented from marrying people of the opposite sex. As the Massachusetts Supreme Court ruled in Goodridge, the state cannot deny "access to an institution of fundamental legal, personal, and social significance... because of a single trait... sexual orientation here."

It seems to me that activists could still work to create same-sex union laws in each state. Thereafter, homosexuals would be able to work to shape society's view of those unions. Now on to Sullivan's take:

It would be the first time that the word "sexual" is inserted into the Constitution of the United States.

Yes, it's a shame that it's come to that, but I don't see how people who wish to redefine marriage not in terms of the specific gender-based relationship that it has always represented, but to enable homosexual marriage, have grounds to object.

And what it is apparently designed to do is to reassure people that the second sentence of the amendment does not indeed do what it seems to do, i.e. ban all forms of civil union or domestic partnership. The religious right would, it appears, be willing to allow civil unions between brothers, or an aunt and uncle, or a son and mother, or two college roommates--as long as it was assumed that no sexual activity was implied in the relationship. By this deft move, the amendment would apparently allow gay couples to get civil unions--but only if they pretended that they were not gay couples.

Sullivan has it almost backwards. It isn't a matter of assuming "that no sexual activity was implied," but declaring that the law cannot distinguish between people based on the individual factor of their sexual behavior. Gay couples wouldn't have to "pretend" anything, but neither would straight friends who wished to procure a license. Sullivan, here, has conveniently forgotten the distinction that he himself drew between civil and religious marriage. Consider that the Vermont civil unions law ensures exclusivity in purely civil terms: "parties to a civil union" shall "Not be a party to another civil union or a marriage." It doesn't say that they shall not be romantically involved with somebody else. But hey, if advocates of gay marriage want to put strong adultery and divorce laws on the table, we social conservatives might be willing to reconsider.

Now here's where Sullivan really goes off the track:

What it amounts to, however, is a constitutional acceptance of any number of social arrangements short of marriage, as long as those relationships are asexual. How would a state legislature or the official granting civil union licenses know that? Short of putting videocams in people's bedrooms, they surely couldn't. So this is a kind of veil of ignorance, a pretense, that affirms the public appearance of a non-sexual relationship, while allowing it in reality. It's "Don't Ask, Don't Tell" applied to the Constitution. It seems, on the face of it, to contradict the second sentence. But it doesn't. It merely underlines the fact that no sexual activity between two people can be a basis for a civilly recognized relationship except heterosexual marriage. It would make civil unions for straight people void as well, if those straight couples had the temerity to be in love or want to have sex.

As already explained, there is much arguable in what Sullivan says, and much that is just plain incorrect. It's not "Don't Ask, Don't Tell"; it's "Not Our Place to Care." This is why it's so bizarre for supporters of gay marriage to use the "what goes on in their bedrooms" rhetoric: marriage, as a civil arrangement, isn't concerned with what goes on within the bedroom, whether the couple sleeps in separate twin beds or has orgies in the garage. But I suspect gay marriage advocates are keenly interested in keeping the "videocams in people's bedrooms" rhetoric floating around in the air. It's a kind of veil of ignorance, a pretense, that seeks to obscure the fact that there is "constitutional acceptance" of all sorts of relationships that are not marriage — for various legal, business, and personal purposes — and that marriage is defined by gender, not sexual or emotional activity.

You can go read the rest of Sullivan's piece on your own, if you'd like to see how he catapults his false assumptions into an implication that the FMA is the next best thing to a gay Holocaust that we religious conservatives are able to effect (for now) within the United States. The last point I want to make is that I find it laughable that Sullivan accuses supporters of the amendment of being "divisive" when he wishes to impose the opposite side on the country. At least an amendment works within the representative and federalist system. Lying about the opposition while attempting to push the "culture war" through the judicial oligarchy is what is truly divisive in this scenario.

Posted by Justin Katz @ 03:40 PM EST