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March 23, 2004

Amendments Around the Net

PROEM:
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Maggie Gallagher has penned today's SSM must-reading:

The very ideas that are being used to promote single-sex marriage are a dagger pointed at the heart of the marriage culture. Marriage, these people are saying, is not a public, social norm, it is an individual civil right, a benefit-dispensing mechanism. Every small town or county can decide for itself what marriage means, with no damage to anything important in our common culture.

The fragmenting of America's marriage culture is going on before our eyes, even as the most stubbornly blind advocates of single-sex marriage continue to insist gay marriage poses no threat. As Bob Herbert wrote in the New York Times, "Those of you who are already married, tell the truth: [Gay marriage] won't make your marriage any weaker, will it?"

She covers all the bases, from the likely shift of a successful same-sex marriage movement toward forcing religious organizations into compliance, to the erroneous declaration that all precedent leaves marriage laws to the states. She also argues against the potential Hatch amendment, which would concentrate marriage amendment efforts on the procedural matter of excluding courts, while leaving state legislatures to do whatever they wish. It is to this portion of Gallagher's piece to which Ramesh Ponnuru responds (read up from the link).

The decisive factor of disagreement is whether the Federal Marriage Amendment, which would actually define marriage, has a chance of passing. Everybody else in the debate is more qualified than I am to judge that. For my part, I continue to think that it would have been a better move all around to withhold whispers of an alternative amendment until this summer — a time at which public support for amendment is trending to cross into "overwhelming majority" territory and at which states such as New Mexico and New York will be taking at least the first steps toward importing Massachusetts same-sex marriages.

Whatever the politics of the situation, Gallagher makes a suggestion in passing that seems to be in line with worries about the Hatch amendment that I share:

There is, however, something wrong with leaving marriage to the states. It won't protect defense-of-marriage laws from being overturned by a Supreme Court already signaling its interest in affirming same-sex marriage as a civil right. And in states that adopt same-sex marriage as a civil right, it won't protect Christian and other traditional religious organizations from persecution in the public square if they teach the sanctity of marriage.

To the first half of that paragraph, Ponnuru responds:

State defense of marriage laws typically have two components: They define marriage as the union of a man and a woman, and they deny recognition to same-sex marriages contracted elsewhere. Under the Hatch language, the Supreme Court has to defer to the state legislatures on the definition of marriage (sentence one) and cannot use any provision of the Constitution to compel a change in that definition (sentence two). Nor can the Supreme Court use the Constitution to compel recognition of out-of-state same-sex marriages, since that would require that benefits be granted in violation of sentence two.

Gallagher seems to be referring to a possibility that I've noted. In short, even as they are blocked from mandating same-sex marriages, federal and/or state courts would have ample room to find pretext to strike down laws that explicitly forbid it. Here's the Hatch amendment, once again:

Marriage and its benefits in each state shall be defined by the legislature or the people 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.

Ponnuru has argued that this would still forbid anti-miscegenation laws because 1) the first sentence doesn't limit federal courts, and 2) the legislatures would not be "free to ignore other parts of the Constitution." In other words, despite the first sentence, the state legislature cannot define marriage as a union of two people of the same race, because the second sentence only limits the federal judiciary inasmuch as it cannot find that marriage must be "extended" beyond opposite-sex boundaries.

This opens an important crack in Ponnuru's response to Gallagher about what each sentence does. Most obviously, the word "extended" could be construed as allowing the Supreme Court to find that the rights can't be "restricted" to opposite-sex couples. Such reasoning might seem foolish, but as I noted in my earlier post, the Nebraska marriage amendment is already coming under attack on due process grounds — grounds that a U.S. District court thought strong enough to allow the case to go forward. And without further legislation, the courts would decide what the amendment restricts the courts from doing.

If they judge themselves only narrowly restricted, the Hatch amendment would protect the marriage precedent as passed along from common law and as inferable from various statutes and rulings, but courts might bestow the right of activists to perpetually lobby for marriage rights free of explicit discrimination in the law.

Maybe.

Posted by Justin Katz at March 23, 2004 2:08 PM
Marriage & Family
Comments

There is admittedly some disagreement within the Gay community over what's more important, the word "marriage" or the benefits and responsibilities that are connected with it. As someone who prides himself as being nothing if not diplomatic, I would take simple legal equality under the law, even if the operative term is "civil unions." If Maggie Gallagher simply wishes to reserve the term "marriage" for heterosexual couples, she can have it, as long as Gay couples are treated fairly.
Here’s an example of how the current system is not fair:
This coming June 29 my partner, Greg Ulbrich, and I will celebrate five years together, which is longer than most heterosexual marriages last. We have made a solemn commitment to each other's well-being, and we are relentlessly monogamous. As law-abiding, taxpaying citizens, we contribute our fair share into Social Security.
Last year I contacted the Social Security Administration (SSA) to see if there was any paperwork or other arrangements I could make to designate Greg for survivorship benefits in the event of my untimely death. I was told that I was unable to do, since we are not married.
More recently I visited the SSA website and did some calculations concerning what survivorship benefits my spouse might be entitled to. Assuming I did the calculations correctly, I found out that my married spouse would be eligible for over $800 per month (after retirement) in the event of my death.
I think anyone would agree that $800 per month is a pretty hefty chunk of change. However, it is money that Greg is not eligible for, because we are not married, nor are we allowed to get married. I would like to provide for the financial well-being of my spouse, just as I'm sure Maggie Gallagher would, but in essence I'm throwing away money on a fund neither Greg nor I are allowed to take advantage of.
At the very least, the federal government should allow Gay spouses to designate each other for survivorship benefits under Social Security. If a "civil union" would allow us to do this, I’m all for it. If not, then nothing but full marriage equality will suffice.

Posted by: Chuck Anziulewicz at March 24, 2004 10:34 AM

Hello Chuck,

Thanks for the comment. Yours certainly sounds like one of the cases that make this such a difficult debate. (And that "relentlessly monogamous" deal sounds much more difficult than the simplified monogamy in which my wife and I engage.)

The bottom line — from my point of view — is that certain cultural realities have to be allowed, even forced, to change before accommodations can be confidently made. These changes will vary according to the specific "reality" in question.

For example, the struggle over "marriage" would have to be settled and a few steps taken down the civil union path before federal laws such as Social Security could be modified. There would have to be a debate over rules and contingencies, of course, but I'm not averse to such an extension (particularly if SocSec becomes more of a personal investment tool, which might be a usefule tie-in). However, a rhetorical check is necessary: you're not throwing away your money, inasmuch as you'll be eligible to collect it.

Posted by: Justin Katz at March 24, 2004 10:59 AM