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March 11, 2004

The Do-Over Amendment

Apparently, even state constitutional amendments aren't safe from federal judicial veto:

The lawsuit's plaintiffs -American Civil Liberties Union Nebraska, Citizens for Equal Protection, and Nebraska Advocates for Justice and Equality - say they are not seeking legal recognition of same-sex marriage in Nebraska.

They claim the amendment violates due process rights because it undermines people's ability to lobby legislators on gay rights issues.

Signed into law by Gov. Mike Johanns in December 2000, the amendment defined marriage as a union between a man and a woman. It also barred state and local government from giving legal recognition to any type of same-sex relationship. ...

Those supporters [of the amendment] suffered a setback last year in the court battle over the amendment.

U.S. District Judge Joseph F. Bataillon of Omaha in November rejected the state's argument that the case should be dismissed because the plaintiffs lacked legal standing to bring the suit.

The judge also said the amendment appeared to go beyond its stated purpose.

"If the purpose, as offered by the (state of Nebraska), is merely to maintain the common law definition of marriage, there would be no need to prohibit all forms of government protection or to preclude domestic partnerships and civil unions," Bataillon wrote.

Should a judge's concept of "the purpose" overrule the plain language of a law? Here's the text of Nebraska's marriage amendment:

Only marriage between a man and a woman shall be valid or recognized in Nebraska . The uniting of two persons of the same sex in a civil union, domestic partnership, or other similar same-sex relationship shall not be valid or recognized in Nebraska.

Newly converted devotees of federalism argue that the gay marriage issue should be decided state by state. Assuming actual conviction, for this crowd, the "decisions" could be made by either the state legislatures or their corresponding judiciaries. Unfortunately, the moderate position on the other side (either based on ideology or a sense of urgency) seems to be forming into essentially the same thing, only cutting the courts out of the in-state process of defining marriage, hopefully including all-but-name-marriages in the form of civil unions. The "Hatch amendment" is currently being floated as doing just that:

Civil marriage and its benefits 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.

The "and its benefits" phrase is a likely addition to a previously revealed first sentence, according to Ramesh Ponnuru. Leaving aside my worries about judicial creativity, this latest version, which Ponnuru supports, would indeed bar judicially created in-state civil unions.

However, the federalism playing field would be left uneven. Under this compromise, such amendments as the one looking likely in Massachusetts, which creates civil unions, or ones that create gay marriage outright would almost definitely stand. On the other hand, an amendment such as that passed by 70% of citizens in Nebraska would face continual challenge in federal court.

In fact, I'd go so far as to suggest that any laws or amendments that seek to confine marriage and/or its benefits to the man-woman construction would come under this federal attack. Federal courts may not be able to construe extension as required, but they'll still be able to construe explicit exclusion as unconstitutional. Ponnuru suggests as much when defending the Hatch amendment against the charge that it creates the possibility of an anti-miscegenation resurgence (emphasis added):

So the question would be: Does the vesting of the power to define marriage with state legislatures in the first sentence bar the federal courts from reviewing the marriage laws for racial discrimination? There are two reasons for thinking that it does not. First, the existence of the second sentence suggests that the first sentence does not limit the federal courts at all. Second, Supreme Court precedent in other cases where the Constitution vests a power with state legislatures does not suggest that those legislatures are free to ignore other parts of the Constitution.

That's what's at issue in Nebraska, and it means that state legislatures (and citizen initiatives) could be limited, if they choose to do any defining, to moving toward gay marriage. Advocates for traditional marriage would be chained to their own goalpost, while advocates for gay marriage would have the full run of the law-creating field.

But as I've suggested, that's not all. I may have been reaching, previously, to suggest that courts could declare themselves as included in "citizens thereof," but law professor Eugene Volokh notes that courts might leverage judicial review in order to include themselves in the legislative process. That would leave even state courts, if not able to require gay marriage, at least authorized to strike down anything that moved to solidify its exclusion. The ability to do that, in turn, would highlight a matter that Ponnuru left unexplored (emphasis added):

What I don't see is what the great harm would be — especially from the perspective of opponents of same-sex marriage — if one state recognized a same-sex couple as married and another state did not. Sure, there would be some thorny legal issues involved. But courts settle conflict-of-law disputes all the time. What we should not want is the settlement of such disputes becoming a pretext for the judicial export of same-sex marriage from one state to the others. The Hatch amendment would block that from happening.

Considering that a New York judge has already begun the process of importing Vermont civil unions on the basis of the state's handling of common-law marriages, I'm not sure what makes Ramesh so confident on this point. Even if courts don't limit "defining marriage" to the internal procedure for issuing marriage licenses, the only way to ensure removal of the pretext of which he warns would be if state legislatures pass laws defining homosexuals out of marriage and civil unions. And such laws would remain vulnerable.

So, imagine a best-case scenario in which the Hatch amendment passes in its latest language. A plausible outcome is one in which state and/or federal courts limit legislatures and citizens to creating definitions ever-closer to gay marriage. As such definitions come into being, courts may still force recognition of out-of-state gay marriages, requiring gay couples only to cross state borders for the ceremonies and increasing pressure to pass laws to remedy what would surely be seen as a foolish requirement.

Such an outcome is by no means certain, but here's the additional catch: if events move in that direction, how likely is it that another federal amendment could be passed?

Posted by Justin Katz at March 11, 2004 10:57 PM
Marriage & Family