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February 18, 2004

The FMA Will Work as Promised and Doesn't Change the Rules of Government

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My recent mentions of some of the key players in the San Francisco marriage coup notwithstanding, I don't believe there to be an active conspiracy to institute gay marriage across the country. I do believe, however, that there's a sort of incidental conspiracy, just as a function of variation among its proponents. So, for example, you get old-school lesbian feminists and anti-assimilationists working with public officials in San Francisco to disregard the law sufficiently to allow a wedge to be inserted. Meanwhile, you get folks like Andrew Sullivan pushing the case on the terms of those who prefer to work within the law. Thus, Sullivan stokes doubts and inspires certain strategies among his opposition, while San Fran Mayor Newsom and lesbian activist Kate Kendell undermine the very foundations on which fair-minded strategies for resolution could be formed.

University of Chicago PoliSci Professor Jacob Levy today joins Sullivan in the attempt to whittle away at the confidence of those who wish to halt or slow the advance of gay marriage. First, Levy rephrases a point that Sullivan has made before, with a new wrinkle at the end:

The second sentence has become the focus of controversy because of the undefined scope of the phrase "legal incidents thereof," which some FMA supporters have said they mean to ban judicially- but not legislatively-created civil unions. But the text doesn't actually do that.

The reason has to do with the mechanics of how the state would go about "creating" civil unions. In the normal course of things, the legislature would write a civil unions law--let's call it the "Civil Unions Act of 2004"--which the judiciary would then deem to have created a civil union. The problem is that, if you allow the judiciary to deem that the Civil Unions Act of 2004 has created a right to a civil union--in other words, to "construe" a the legislation as doing so--you also have to allow the judiciary to construe other sources of law--for example, the equal protection clause of a state constitution--as creating that right as well.

Why is this important? Because the converse is also true. If you try to prevent the judiciary from deeming that something like the equal protection clause creates a civil union--which is what supporters of the FMA hope to do--then you also prevent the judiciary from deeming that the "Civil Unions Act of 2004" creates a civil union.

The problem with this arises when one realizes, having read the Federal Marriage Amendment dozens of times, that nowhere therein are the words "civil union." Here, read it again:

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.

Consider, a state legislature could pass that CUA of '04 granting couples merely the right to a slip of government-stamped paper with the partners' names and a big smiley face sticker on it. There being nothing in the FMA about smiley-faced papers, and the judiciary not having the power to insist that stamping them is a service that the state must offer, we see how a legislature could do what the courts could not.

Of course, the "incidents of marriage" phrase is the rub. But here again, the principle holds, because the legislature could grant specifically enumerated rights to civil unions — without reference to marriage — thereby making those rights no longer exclusively "incidents of marriage." Imagine that the state's marriage licenses happen to be the only official documents that are currently marked with smiley faces. The FMA would forbid a judge from declaring that civil unions deserve to be marked with the same stickers on the basis that they are used for marriages. However, the legislature could simply define the visual approbation as a newly minted incident of civil unions.

This is a point that I've argued — and have been largely ignored by those to whom I've been responding — many, many times. However, Levy adds a new point to the debate, leveraging, as Sullivan has done, another principle that conservatives hold dear along with their belief in the importance of traditional families: federalism.

There is another, subtler problem with the FMA's second sentence: It does not merely limit and constrain state laws. It dictates a rule about how state laws and state constitutions will be construed and interpreted by the state's own courts. That is an unprecedented intrusion into the autonomy of the states' legal systems. Instead of limiting state law with federal law, from the outside, it would distort state law from within.

In trying to limit the scope of their infringement of states' practical rights — whether for political or principled reasons — the supporters of the FMA have, according to Levy, intruded upon a procedural right. The complaint seems to be that, rather than declaring that a state can't say something to be true, the amendment would play a sort of governmental mind game whereby the state could say it, but couldn't mean it. This is an important distinction, in Levy's view, because:

A state's law prohibiting miscegenation... will be overridden by federal courts enforcing the federal Constitution. But the federal courts are interpreting federal law when they do so, not state law. It is an important principle of American federalism that only state courts may do the latter. ...

The FMA... would compel not the conclusion that federal law overrides any state's attempt to create gay marriage or civil unions, but the conclusion that, no matter what the state's legislature, constitutional convention or referendum, or judiciary decided, state law never created gay marriage or civil unions in the first place. For example, if a state's legislature and voters agreed... to amend their state constitutions to say that "Civil marriage in this state shall be available to couples of the same sex," state judges would be compelled, by their oaths to the federal Constitution and its supremacy clause, to deny that the state constitution meant what it said.

The Fourteenth Amendment includes language that draws this distinction (emphasis added):

No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States

The legislature cannot make such a law, and the judiciary could not enforce it. In effect, the FMA would, Levy is arguing, allow the former, but not the latter by forcing the court to declare that the "making" was a meaningless gesture, and this crosses some line of principle across which... what? Well, on that count, I'm not sure. For one thing, I'm not convinced that the line hasn't already been crossed in certain cases. The 14th is rather more specific in this respect than other amendments. The 15th Amendment, for example, merely declares that the right "to vote shall not be denied or abridged by... any State on account of race, color, or previous condition of servitude." Can the law be made? Or just not enforced? Or believed to do what it claims to do? The 13th Amendment is even worse (emphasis added):

Neither slavery nor involuntary servitude... shall exist within the United States, or any place subject to their jurisdiction.

It seems to me that, while it isn't specifically mentioned, the Rhode Island legislature, for example, could pass a law saying that conservatives may be retained by private parties for "compulsory labor," but that the judiciary would thereafter have to rule that I (for instance) could not be treated as such because the state of being into which the law claims to place me does not, in fact, exist — much as Levy suggests a court would have to conclude that civil unions don't exist, no matter what the law says.

It's an instructive comparison. It isn't difficult to model a movement challenging the very definition of "slavery." A conservative, in this analogy, isn't really a person, inasmuch personhood requires a soul, as made evident by agreement with certain reasonable and humane policies. Therefore, since the Constitution doesn't explicitly limit a person's right to own a "conservative," a court could find that right to exist already therein. Moreover, this must be the case, because exploiting a conservative's natural drive to work hard, even for pay, is akin to "slavery," which must, therefore, be permitted so as to allow conservatives to live full and productive lives. To finesse a way through this, a Constitutional amendment could be proposed to (1) affirm the definition of slavery, (2) allow states to pass laws permitting the hiring of conservatives, and (3) forbid courts from declaring such employment to be unconstitutional slavery.

This is, of course, a silly comparison, but remember: Levy is talking about a principle, which as such must be always and everywhere true if it is to have the force that Levy is claiming for it. Otherwise, Levy would have to argue, instead, that the principle isn't worth breaking in this case. If he were to do so, I'd argue that he is wrong. But as the conservative bondage scenario illustrates to ridiculous degree, the proper answer for those who support the current definition of "marriage" to the objection that Levy is actually making is: So what!

We're making use of a mechanism that exists within the law to address a specific and unforeseen problem. That doesn't necessitate that the same mechanism be used in the same fashion in the future any more than the rarity of Constitutional amendment forbids it.

(via Instapundit)

Mr. Levy has responded here, and I've continued the discussion here.

Posted by Justin Katz at February 18, 2004 3:35 PM
Marriage & Family

Is anyone else tired of this issue ? (referring to whether the FMA is meant to prevent legislatures from creating civil unions).

It seems rather obvious to me that BOTH SIDES are exaggerating their point.

I agree with Justin that it is not clear that the infamous second sentence precludes the granting of civil unions. Using the most stringent legal analysis, it's meaning is vague at best and even I think that Sullivan is going 'over-the-top' on it.

On the other hand, if you are trying to argue that there is no wiggle room, that there is no possible way that the infamous phrase 'legal incidents thereof," could possibly be interpreted as referring to civil unions then you are ... well, I won't pretend to know your motive.

Let's be honest - if the FMA is passed, don't you really think that there will be 'some' people who will want the judiciary to interpret that sentence in the way that Sullivan is afraid of ? The answer is 'of course'. Will it be a 'slam dunk' that it will be interpreted that way ? No - but it does open the door to it.

I guess the reason I'm so tired of this specific issue is that I strongly believe that the amendment (regardless of the phrases in it) will not pass in the near future. (in my mind - ever)

I am opposed to the amendment but I guess if I thought it would really happen soon I'd be more interested in this 'wording' debate. But maybe Sullivan thinks it will happen soon and that is why he is addressing it with so much fervor.

Posted by: Mark Miller at February 18, 2004 4:21 PM

Well, Mark, if there's somebody standing over your shoulder forcing you to read these posts on the FMA, then you should probably make sure he's aware that he's doing me a strictly volunteer service.

The piece to which I'm responding, here, is by Jacob Levy, not Andrew Sullivan. It raises new points. And even so, the reading for which I've been arguing still hasn't been a significant part of the larger debate. Obviously, if Sullivan, Levy, et al. succeed in making the FMA seem either fanatically restrictive or uselessly broad, then it never will pass.

I'm not sure what gives you the idea that I'm arguing that my strict reading will be the only one to find effect. As I said just a few posts ago, some states will push the boundaries of marriage with "civil unions," some won't even come close. That gradual debate, to my mind, is the central reason for supporting the FMA, because as I've told you, specifically, I think it's erroneous to see amendments as written in stone.

During the ensuing federalist project, the public will come to a clearer understanding of what it believes marriage ought to be and what role, in that context, it thinks homosexuals ought to play.

Posted by: Justin Katz at February 18, 2004 11:29 PM

This person over my shoulder is really driving me nuts.

Seriously, I was referring to this specific issue being such a significant part of the gay marriage debate. But as I said, I may simply be wrong in my view of the significance or lack thereof.

But you never really addressed my main question - that is whether you feel it is overly paranoid to believe that the famed second sentence or phrase could possibly be used to more restrictive (banning state legislated civil unions).

I have my suspicions about the intent of that sentence/phrase. But ultimately, I feel it is all much ado about nothing.

Posted by: Mark Miller at February 19, 2004 11:38 AM

I don't think it is "a significant part of the gay marriage debate." I think the FMA should be more central to the discussion, which is why I spend so much time refuting Sullivan's and others' efforts to paint it such that it never gets a hearing.

As to the question that I thought I'd answered but apparently didn't, I'd say it would be ridiculous to suggest that nobody will push for the restrictive definition or to promise that no judge would ever be persuaded by that argument. But that's an unavoidable. The Defense of Marriage Act is, in my view, entirely constitutional, but gay marriage advocates are certainly going to attack it, and various judges are already hinting doubts about its constitutionality.

As I said, some states will go one way, some will go another, and this is how our nation will come to balanced, broadly representative views of marriage and homosexuality.

Posted by: Justin Katz at February 19, 2004 11:46 AM

"As I said, some states will go one way, some will go another, and this is how our nation will come to balanced, broadly representative views of marriage and homosexuality."

- I agree with this statement. Except that my agreement is not in conjunction with the passing of the amendment, which I feel is unnecessary (and bad policy, but you already knew I felt that way).


Posted by: Mark Miller at February 19, 2004 4:38 PM