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There were diverging opinions about the precise scope of the marriage amendment as originally proposed:

bulletIts supporters were in general agreement that the marriage amendment simply maintain the status quo.
bulletIts detractors said that it would strip away many existing and future rights of non-married folks, -- both same-sex and opposite-sex -- and paralyze state and federal government activities intended to support and protect them and their children.

The ambiguity was later removed when the proposed amendment was rewritten.

This essay continues below.

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Contrasting statements about the proposed amendment, as initially worded:

According to Alliance for Marriage, the original proposed amendment would simply preserve marriage as it now exists.

Alliance has produced the following summary chart, which they kindly allow to "be downloaded and reprinted without restriction:" 1

"Domestic Partnerships"
IMPOSED BY COURTS Sentence 1 Prohibits Sentence 2 Prohibits Sentence 2 Prohibits Unaffected
ACTION OF STATE LEGISLATURE Sentence 1 Prohibits Decision of State Legislature Decision of State Legislature Unaffected

In summary, the Alliance believes that if the amendment were implemented:


Neither the courts nor a state legislature, nor the Federal government could expand the scope of marriage to include same-sex couples.


Courts would be prohibited from creating or requiring the legislature to create civil unions. However state legislatures would be free to create civil unions.


Courts would be prohibited from giving those special rights that only married couples have historically enjoyed to common-law couples, including same-sex partners. However state legislatures could do this.


Businesses could offer employee benefits to common-law couples, including same-sex partners, without restrictions imposed by the government or court.

But the ACLU and groups fighting for equal rights for gays, lesbians and others say that the amendment would in fact wipe out many rights given to both same-sex and opposite-sex couples. It would paralyze state legislatures from passing legislation to support and protect civil unions and registered domestic partnerships. It would prohibit state legislatures from giving significant rights to common-law couples.

It is necessary to examine the proposed amendment's second sentence very carefully and assess how it might be applied before one can decide which side is correct.


How did the Vermont civil unions law come about, without this amendment? Both Matt Daniels and the Alliance web site refer to the Baker v. Vermont lawsuit. This case was initiated by two lesbian couples and one gay couple in 1997. The marriage law in Vermont at the time was such that if "Jane" wanted to marry "Bill" then she would have been able to obtain a marriage license, get married and have the marriage recognized by the state. But if "Jane" wanted to marry "Jill," -- another woman -- she would have been refused a marriage license because "Jill" was of the wrong gender. The marriage law in the state obviously discriminated on the basis of the genders, when it came to same-sex engaged couples. But the existing anti-discrimination section of Vermont's constitution required men and women to be treated equally; there is to be no discrimination in the state on the basis of gender. The state constitution thus was in conflict with the marriage act. In cases of this type, the constitution must take precedence. The state Supreme Court interpreted Vermont's constitution as requiring that all couples, both same-sex and opposite-sex, must have access to those state benefits that had previously been considered special benefits, and reserved only for married couples. They gave the legislature two options:


To widen the definition of marriage to include both same-sex and opposite-sex couples, or


To create a parallel system for gays and lesbians that granted the same state benefits as marriage, but was called by a different name: civil union.

The politicians had no wiggle room. If they refused to follow the instructions of the court, they would have violated their oath of office, which requires them to uphold the constitution as interpreted by the court. They would also be open to other penalties as imposed by the court. They decided to create a system of "civil unions."


How would the Vermont lawsuit have been handled if this amendment were already in place? As described above, the marriage law in Vermont obviously discriminated on the basis of the genders of engaged couples. But the state constitution required men and women forbids such discrimination. Normally, the state constitution would take precedence. However the proposed amendment to the federal Constitution states that a state constitution shall not be interpreted as requiring "that marital status or the legal incidents thereof be conferred upon unmarried couples or groups." Or, in other words, the proposed amendment would over-rule the state constitution; it would allow the state to discriminate on the basis of gender in this one specific field -- that of marriage law -- even though the state constitution forbids it.

In this case, the outcome would be exactly what its supporters claim the proposed amendment is designed to do. It would to prevent the courts from following anti-discrimination laws in state constitutions, and requiring state legislatures to pass laws which would allow gays and lesbians to marry or obtain a civil union.


How would the proposed amendment affect a state civil union law? The legislature of the state of California passed Bill AB-205 the "Domestic Partner Rights and Responsibilities Act." It is similar to the civil union law passed in Vermont's. It gives registered domestic partners the same rights [that are] granted to and imposed upon [married] spouses in the state. These total about 400  state benefits.


Effect of the amendment on state laws: Consider what effect the proposed amendment would have on this California law if its constitutionality were challenged in court. The amendment says that no state law can "be construed to require that marital status or the legal incidents thereof be conferred upon unmarried couples..." Registered domestic partners are, by definition, unmarried, just as a married couple is, by definition, not a domestic partnership. One provision of this law confers upon unmarried couples "legal incidents" of marriage -- i.e. all the state's standard rights, benefits, and privileges that married couples routinely receive. The court would have to rule that, according to the amendment, the law cannot give these rights to unmarried, civil-unionized couples. The law would have to be interpreted in such a way as to prevent the couples from receiving any benefits. The state law would be unconstitutional. In fact, if the proposed constitutional amendment were in place, the California legislature would not have the power to give "benefits associated with marriage" to its domestic partners. And if they cannot grant any benefits to these couples, then a domestic partnership registry would not really exist except as some sort of simple government data base which does not grant any benefits.


Effect of the amendment on state civil servants: Consider a lesbian couple approaching a state license bureau asking to be registered as domestic partners. Again, the amendment says that no state law can "be construed to require that marital status or the legal incidents thereof be conferred upon unmarried couples..." If the civil servant were to register the couple then the state law would be used to confer upon this unmarried couple a few hundred "legal incidents" of marriage. This is clearly unconstitutional. The state employees would be performing an unconstitutional act, and could be subject to criminal prosecution.

Thus, it would seem that any state law granting benefits associated with marriage to civil unionized couples would be unconstitutional. If so, then the Alliance for Marriage's summary chart is in error and should be modified to read:

"Domestic Partnerships"
IMPOSED BY COURTS Sentence 1 Prohibits Sentence 2 Prohibits Sentence 2 Prohibits Unaffected
ACTION OF STATE LEGISLATURE Sentence 1 Prohibits Prohibited by the Amendment Prohibited by the Amendment Unaffected

It would seem that the ACLU is correct: the proposed amendment would be draconian on its effects on unmarried people. This would include:

bulletAll gays, lesbians and bisexuals who have formed loving, committed same-sex relationships and who, in some cases, have been either "civil unionized" or had their partnership registered with the state.
bulletLoving, committed heterosexuals couples who have decided to create a family, and to make it outside of the legal framework of marriage.
bulletElderly couples who live together without marriage for economic reasons.

The proposed amendment would nullify massive amounts of existing legislation and prevent future legislation from being being passed and ruled constitutional:

bulletAny federal or state law that give common law couples one or more of the same rights as are currently granted to married couples would be declared null and void.
bulletAny protections granted to common law couples and their children would be stripped away.
bulletAny future laws which gave protections to all families, rather than just to married couples, would be unconstitutional.

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Conclusions about the original wording:

The original marriage amendment is an innocent sounding amendment. But it would have immense and widespread implications.

It appears to be a stealth proposal that appears innocent enough at first glance. However it would:

bulletResult in numerous existing laws that protect families being declared unconstitutional, and
bulletCripple the courts, Congress and state legislators from passing future laws to protect both adult couples and their children.

Most recent stealth laws that have been passed in the recent past have been tentatively declared unconstitutional by courts and have been blocked by court injunctions. Two major examples of such legislation are:

bulletVarious attempts to protect children on the Internet from exposure to undesirable web sites. The effect of the laws would have been to criminalize all Internet sites that were not suitable for children. These laws were clearly unconstitutional because they unduly restricted free speech. The legislation was equivalent to a law which required all libraries to burn all of its books which were not suitable for children.
bulletVarious state attempts to criminalize D&X procedures (often call partial birth abortions). As worded, they could have been interpreted as banning all abortions. Although many states passed such laws, they were quickly rendered inactive by court injunctions.

However the proposed amendment is not an ordinary piece of legislation. It would actually change the U.S. Constitution. It could not be declared unconstitutional by any court, because it would form part of the Constitution document itself.

It appears that:

bulletEither the Alliance for Marriage and other promoters of this amendment were unaware of the effect that its wording would have on society, or
bulletThe Alliance and other promoters are fully aware of the social effects of this amendment and are hoping that the public will not realize what the actual impact of the amendment would have been.

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  1. Alliance for Marriage has its home page at: http://www.allianceformarriage.org/

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Copyright © 2002 and 2004 by Ontario Consultants on Religious Tolerance
Originally written: 2002-MAY-26
Latest update: 2004-JUN-21
Author: B.A. Robinson

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