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February 23, 2004

We Can Be Reasonable, Here

In addressing some of the objections to the FMA that I've fielded recently, Ramesh Ponnuru offers a reminder of something that it's easy to forget: agreement with the marriage amendment in whatever form those negotiating the wording think can pass doesn't mean there won't be degrees of preferred policy different. I could back this, for example, if it would help the cause:

As for the suggestion that no possible language will work, let me offer a suggestion: Strike the words "state or" from the second sentence of the amendment. That is to say, make it possible for a state law to be construed to require the conferral of benefits on same-sex couples. But continue to block the construal of a state constitution that way. That deletion should make Volokh's scenario go away. And amendment supporters would not be giving up very much. What they are most concerned about is the idea that a court will take one of the "majestic generalities" typically found in constitutions and give it a specific meaning they do not believe it can bear. Statutes, by their nature, are less susceptible to this kind of thing. And if a state court took interpretive liberties with a statute, it would be much easier for the state legislature to correct the problem — it would simply need to pass a new statute.

To be sure, if changes are to be made, I'd rather they just clarify what I believe that the FMA already does: allows civil unions as long as they're built without reference to marriage. But that's a subtle point, in the big picture, that I would gladly trade. Particularly if polls continue to trend as I'll be noting in a post or two...

Posted by Justin Katz at February 23, 2004 11:45 AM
Marriage & Family