"FEDERAL MARRIAGE AMENDMENT" TO THE U.S. CONSTITUTION
EFFECTS OF THE AMENDMENT, AS ORIGINALLY WRITTEN, ON THE COURTS, LEGISLATURES,
AND COUPLES' COMMITTED RELATIONSHIPS
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Overview:
There were diverging opinions about the precise scope of the marriage
amendment as originally proposed:
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Its supporters were in general agreement that the marriage amendment
simply maintain the status quo. |
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Its 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
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REDEFINITION OF MARRIAGE |
"Civil Unions"
"Domestic Partnerships" |
BENEFITS ASSOCIATED WITH MARRIAGE |
EMPLOYEE BENEFITS OFFERED BY
BUSINESSES |
| 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:
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Neither the courts nor a state legislature, nor the
Federal government could expand the scope of marriage to include same-sex couples.
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Courts would be prohibited from creating or requiring the
legislature to create civil unions. However state legislatures would be
free to create civil unions.
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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.
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Businesses could offer employee benefits to common-law
couples, including same-sex partners, without restrictions imposed by the
government or court.
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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.
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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:
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To widen the definition of marriage to include both
same-sex and opposite-sex couples, or
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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.
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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."
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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.
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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.
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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.
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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.
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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.
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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:
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REDEFINITION OF MARRIAGE |
"Civil Unions"
"Domestic Partnerships" |
BENEFITS ASSOCIATED WITH MARRIAGE |
EMPLOYEE BENEFITS OFFERED BY
BUSINESSES |
| 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:
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All 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. |
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Loving,
committed heterosexuals couples who have decided to create a family, and to
make it outside
of the legal framework of marriage. |
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Elderly 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:
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Any 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. |
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Any protections granted to common law couples and their children would
be stripped away. |
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Any future laws which gave protections to all families, rather than
just to married couples, would be unconstitutional. |
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:
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Result in numerous existing laws that protect families being declared
unconstitutional, and |
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Cripple 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:
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Various 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. |
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Various 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:
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Either the Alliance for Marriage and other promoters of this amendment
were unaware of the effect that its wording would have on society, or
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The 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. |
References:
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Alliance for Marriage has its home page at:
http://www.allianceformarriage.org/
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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