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March 6, 2004

An Inadequate Plan B

Civil marriage shall be defined in each state by the legislature or the citizens thereof. Nothing in this Constitution shall be construed to require that marriage or its benefits be extended to any union other than that of a man and a woman.

This, according to a National Review editorial, is the text of a proposed alternative amendment from Senator Orrin Hatch. Although I've disagreed with particular arguments from NR before, this is the first statement that I can recall to which I've reacted, "Huh?":

This amendment would not only clearly allow civil unions to be enacted by legislatures; it would even allow legislatures to enact full-fledged same-sex marriage. But it would bar federal or state courts from imposing either.

I see nothing in that text to so much as increase the difficulty faced by a state judiciary that wishes to demand civil unions. To the contrary, it seems to me that the inclusion of the words "or its benefits" in the second sentence implies that in-state benefits aren't protected by the first sentence. However marriage is defined, in other words, the courts could find that the state must grant equivalent benefits to homosexual couples.

Worse yet, if the courts see themselves as acting on behalf of the "the citizens thereof" — and they are, after all, civil servants, defenders of individual rights against the tyranny of the majority — then this amendment wouldn't stop them from redefining marriage; they'd merely be doing their duty on behalf of the citizens. Barring that, they would only have to be sufficiently creative to find a way to argue that the state's constitution and/or previous laws of the legislature or citizenry "defined" gays into marriage by requiring equal treatment, or whatever pretext would have been used to grant gay marriage to begin with.

Elsewhere, the editorial touts "the additional advantage of being clear and understandable to the layman." The legal class, however, has built an entire industry around the practice of making layman-comprehensible terms and concepts mean their opposite. Is it really "extending" the benefits of marriage, for example, to find that the Constitution requires us to believe them inherently granted by the law?

I understand the desire to find language with broader appeal, and I realize that something is better than nothing (if nothing looks to be the likely outcome). This proposed amendment, however, reads to me like an invitation for judges to expand their penchant for parsing, not to pull it back.

Posted by Justin Katz at March 6, 2004 11:49 PM
Marriage & Family
Comments

I agreee with the "Huh?" This is a dead letter. Here's the quick test: does the proposed Federal amendment allow group marriage to be enacted by the states? This one cleary does.

Now to the text: The first sentence changes absolutely nothing from the status quo. The second sentence constrains the federal government. The term "this Constitution" is pathetically vague.

Posted by: Patrick Sweeney at March 11, 2004 9:03 AM

Sorry but what's the problem with gay marriage? If two people love eachother than what's the big deal? It should really be of no concern to you who falls in love with whom... I'm pretty disgusted with some of the comments so casually presented in this piece. "they would only have to be sufficiently creative to find a way to argue that the state's constitution and/or previous laws of the legislature or citizenry "defined" gays into marriage by requiring equal treatment, or whatever pretext would have been used to grant gay marriage to begin with." Open your eyes.

Posted by: Alice at April 22, 2004 11:29 PM

Alice,

I've written quite a bit answering your question about the problem of gay marriage... if you're actually interested in figuring out why others oppose it. (I'm sure you think you already know.)

As a matter of fact, I'm not particularly concerned about "who falls in love with whom." However, that topic isn't interchangeable with "who marries whom." If marriage is entirely a matter of people loving each other, I see absolutely no reason for the government to persist in marking and regulating such relationships at all.

I'm sorry you're disgusted, but a healthy society requires that somebody ask uncomfortable questions.

P.S. — If a brother and sister, or father and adult daughter fall in love and wish to marry, would you consider that an appropriate matter of concern?

Posted by: Justin Katz at April 24, 2004 7:38 PM