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February 9, 2004

Don't Know Why It's So Confusing

Ramesh Ponnuru has responded to Andrew Sullivan's (probably) mistaken characterization of the two-sentence FMA with a similar argument to the one that I made yesterday. Eugene Volokh has already argued that Ramesh is wrong.

I'm not a lawyer, as Mr. Volokh is, but it seems to me that his argument makes complex something that is relatively simple. (Of course, some might suggest that that's the way law works.) The following passages don't capture Volokh's argument, but they contain the points that I wish to rebut:

As I've argued earlier, imagine that the New York legislature or the California voters decide to create a "civil union" statute, under which gays can enter into such a union. The statute then requires all state and local government officials to treat civil unions as tantamount to marriages, for purposes of child custody, divorce, intestate succession, wrongful death litigation, and so on. ...

So[, Ponnuru argues,] a legislatively created civil union statute that (for instance) completely tracks all the benefits and burdens of marriage wouldn't have to be "construed to require that . . . the legal incidents [of marital status] . . . be conferred upon unmarried couples" -- rather, it will simply be construed to eliminate any "incidents" of marriage under state law, except for the label "marriage."

This is a creative argument, but I don't think it's quite right.

I think Volokh has argued around the simple solution in such a way as to misconstrue what Ponnuru is saying. In short, Volokh is correct that a legislature couldn't create a short-hand civil union law that "completely tracks all the benefits and burdens of marriage." The matter that he doesn't address at all is the possibility of a legislature's specifically enumerating the rights that accrue to a civil union.

For example, one part could declare that "those entered into a civil union will have full familial hospital visitation rights" (or whatever the language might be). Alternately, as was done with parts of the Patriot Act, the legislature could pass civil union statutes that amend the laws in which marriage rights are granted. So, keeping with the hospital example, the new law would declare that "[the hospital visitation law] is hereby amended to include 'or civil union partner' after the word 'spouse.'"

In this way, nobody is "construing" anything. The legislatures are simply making particular — specific — incidents of marriage incidents of civil unions, as well.

Posted by Justin Katz at February 9, 2004 9:33 PM
Marriage & Family