If "incidents of marriage" really has nothing to do with civil unions, then it has nothing to do with them for either the legislature or the judiciary. And the judiciary, empowered to construe the Civil Unions Act as granting some privileges to gay couples because those privileges are not incidents of marriage, must also be empowered to construe other sources of law as granting, or requiring the grant, of those privileges.
In addressing the FMA without reference to the legal context in which it would exist, it seems to me that Levy comes close to defining away the distinctions between legislation and adjudication. Because, as I said, the FMA doesn't contain the words "civil union," a legislature could pass a law creating something with that name, but with a purpose having nothing to do with marriage-like relationships. At the same time, unless there's some constitutional mandate requiring them, the judiciary can't legislate them into existence.
Suppose the legislature created "civil unions" whereby a person could receive certain benefits for registering to pay somebody else's college loans. The fact that the legislature can do so does not mean, of itself, that the corresponding judiciary could declare that people deserve to have somebody else pay off their debts, or that people who pay others' loans deserve some sort of benefit. Or take healthcare. A legislature could pass a law giving civil employees the ability to include a single other person under their health coverage. That, of itself, doesn't mean that a judge could declare that every civil employee already has that ability as a right.
Moreover, a legislature could put restrictions on this benefit say, only permitting elderly parents to be the non-employee beneficiaries. In contrast, while it is possible to imagine, theoretically, that a judge could find some law somewhere to construe as requiring healthcare benefits to all, it's quite a bit more difficult to imagine a basis on which the judge could limit that right to a specific group. This is why, in Massachusetts, civil unions would have been a wholly political compromise, not founded in the rights-based language of Goodridge. With this in mind, return to Levy:
Any civil unions created by the legislature that included any right or privilege traditionally associated with marriage forces the judiciary to decide: have "incidents of marriage" been distributed here?
Levy's insertion of the word "traditionally" is arbitrary. "Traditionally" in what sense? To whom? Are tax benefits traditional? Is the "marriage penalty"? Traditional incidents of marriage can fall away, and the government can add incidents to marriage or take them away a special first-time home buyer plan, for example.
So, a legislature could pass a law giving a $10,000 down-payment gift to married couples. It could pass another law giving a $10,000 down-payment gift to civil-unioned couples. Yet, the judiciary could not introduce that same policy arbitrarily, and if it somehow found a right to $10,000 written into the constitution, it's extremely difficult to see why it would be limited to married people, or civil unions, or groups of people, or what have you.
In this example, the FMA would restrict both the legislature and the judiciary from expanding that $10,000 marital perk to others on the basis of its being a marital perk. In the amendment's language, the fact that married couples are currently entitled to the money, of itself, cannot be construed to require that other couples or groups are similarly entitled. But a legislature, by its nature, isn't limited to discerning what the law requires or restricted from setting up parallel perks; a judiciary, by its nature, is.Posted by Justin Katz at February 19, 2004 3:07 PM