Stickiness for a "First Amendment Absolutist"

Andrew Sullivan has ignored the argument that I've made that the two-sentence FMA would allow states to set up civil unions, provided they enumerate the rights, privileges, and responsibilities granted, and I'm pretty sure he's done so deliberately. I've just assumed that was another facet of his ongoing attempt to paint the FMA in the blood red of fundamentalist oppression.

But there may very well be a more-specific reason for his wanting to leave the point out of the debate, having to do with uncomfortable questions that it would raise. An obvious talking point for those who support the FMA that, surprisingly, I haven't heard mentioned is that, with full marriage, homosexuals become entitled to anything that heterosexual spouses are entitled to — public or private. If an employer provides health benefits, say, to an employee's spouse, it won't make a legal difference whether that spouse is the same sex as the employee or not. Now consider this from an email related to the FMA that Sullivan posted back in July:

Suppose a state enacts a statute that: (1) establishes civil unions, which may include same-sex partners; (2) makes it incumbent upon employers to extend the same domestic partnership benefits to employees' "civil union" spouses that it does to employees' "marriage" spouses; and (3) creates a cause of action against any employer that fails to comply with (2). Suppose then that a gay man enters a civil union with his partner, requests the domestic partnership benefits, and the employer refuses. Employee sues. It seems to me that under the statute, in order for a court to grant relief, it will have to find that the language of the statute conferrs "legal incidents of marriage" on an unmarried couple. Just because the "plain reading" of the statute provides a legal incident of marriage doesn't mean that the court is not "construing" the statute when it grants relief. The FMA would prohibit the court from doing that, making parts (2) and (3) of the statute unenforceable. At that point, what's left of the civil union that distinguishes it from a novelty marriage license won at a carnival?

This is similar to the scenario that Eugene Volokh has imagined, except that Volokh had the good sense to make the hypothetical homosexual employed by the state. It's ridiculous to suggest that private companies' benefits are all that separate marriage from "novelty marriage." What Sullivan's version highlights is that he wants to ensure that "civil union" becomes defined in the public eye as "might as well be marriage." It highlights something a bit more insidious in context of my reading of the two-sentence FMA.

In that reading, a state legislature could pass a bill that mandates for "civil unions" every single right, privilege, or responsibility that it grants to married couples. What the amendment disallows the legislature to do is to force private entities to equate marriage and civil unions. Personally, in the generic company, I oppose discrimination against homosexuals (although I think it ought to be a right that employers have). However, a law that forces any employer who offers benefits to spouses to also offer those benefits to civil unioned gay partners crosses the line into forcing that employer to "approve" of the homosexual relationship itself.

Of course, even with the FMA, the legislature has a way around this problem, but that way highlights Constitutional questions — already inherent in the full gay marriage — that Sullivan and other SSM supporters would prefer remain without voice. With the latter, a marriage is a marriage is a marriage. With the former, a legislature could just add a "public or private institution" clause to bring about the same effect. In the language Sullivan's reader uses, private employers are specifically required to "extend the same domestic partnership benefits." That's already more specific than an FMA without the second sentence would require.

I can't say definitively, but it seems to me that a legislature, abetted by its state's judiciary, could get around even the two-sentence FMA by taking pains to find some reference other than "marriage" and avoiding language like "extend." Be that as it may, Sullivan's objection, put in practical terms, is that a Federal Marriage Amendment would make it somewhat harder for the government to force private entities and citizens to treat homosexual unions as marriages.

Rather than say as much, it's much more politically savvy to disguise the ease with which gay marriage would yield the same results behind rhetoric about "a very clever device to strip gay couples of any civil protections whatsoever."