Yale Law Prof Jack Balkin... ____________________ Is the Federal Marriage Amendment A Bait And Switch Game? I've been thinking about the proposed Federal Marriage Amendment (FMA), whose text is available at the website of the Alliance for Marriage. The proposed text of the amendment reads: Marriage in the United States shall consist only of the union of a man and a woman. Neither this constitution or the constitution of any state, nor state or federal law, shall be construed to require that marital status or the legal incidents thereof be conferred upon unmarried couples or groups. The Alliance for Marriage argues on their website that this language is designed to keep courts from imposing same sex marriage on the states, and to keep legislatures from passing laws authorizing same-sex marriage, but it does not prohibit state legislatures from passing laws creating civil unions for same-sex couples. I'm not so sure. The text is cleverly and confusingly written: The amendment says that no "state or federal law shall be construed to require" that "the legal incidents of" marriage may be enjoyed by same-sex couples. These legal incidents include a whole bundle of rights in family law, pension law, tort law, property law, and so on. What the text seems to say is that everyone who is sworn to uphold the law, including not only judges, but executive and administrative officials, would be prohibited from construing the law to give same sex couples this bundle of rights or any part of them. Since the law cannot be construed to do this, it cannot be enforced to this effect either. Private employers who give same sex couples benefits simlar to those of married couples would be able to do so, but they would not be permitted to construe any federal or state law as requiring them to do so, and no government official could enforce such an interpretation against private businesses. Thus, California's laws, which now give same sex couples many (but not all) of the same rights as married couples, and Vermont's civil unions law, which gives almost all of the same rights, would probably be made unenforceable by the Amendment's second sentence. If the FMA had been designed to do what its proponents claim it will do, it should have been drafted as follows: Section 1. Marriage in the United States shall consist only of the union of a man and a woman. Neither this constitution or the constitution of any state, nor state or federal law, shall be construed to require that marital status be conferred upon unmarried couples or groups. Section 2. Nothing in the first section of this Article shall be construed to prevent either Congress or the legislatures of the several states from providing any other benefits, rights, or privileges, or combinations thereof, to unmarried couples or groups. Thus, Congress and state legislatures may provide all of the incidents of marital status except marital status itself. As you can see, such an amendment is not particularly difficult to draft. The fact that there is a gap between what the text says and what the Alliance for Marriage says the text will do suggests to me that they are not being entirely forthcoming about the reasons for the Amendment.
I think that's the point FranchiseBlade. Jr dropped this bomb knowing that it would become a huge issue! Maybe even big enough to take people's minds off all the other failed issues of this administration. Ain't gonna work...
I agree. This is probably just a diversion tactic from him. I hope it's not a diversion tactic that ends up marring our constitution with an unjust amendment though.
It's almost the exact same thing the conservatives tried to do with the flag burning amendment. Raise some political issue to try to divide the country with a wedge.
One of my gay friends called me and told me that Bush was avoiding real issues and playing "wag the ***". OMG, hilarious.
This amendment proposal is just more of the same from the big government conservative movement (BGCM) whose only goal is to infiltrate and oversee every aspect of American life.
and lt. smash weighs in w/ this report from the front lines: http://www.lt-smash.us/archives/002676.html#002676 -- Marriage Under Fire SAN FRANCISCO – Mayor Gavin Newsom says that over 3,000 same-sex couples have been married in the past two weeks since the city began issuing liscenses. The mayor has no regrets about his decision. "At the end of the day I sleep well," Newsom says, "and in life there is nothing more important than that." But the ripple effects caused by this change in the definition of marriage are now beginning to be felt around the region. David and Suzanne Lekes, a married couple who have lived in Marin County for eight years, feel they’re being cheated out of parenthood. “We’ve been trying to get pregnant for three years. She’s taken fertility pills, we tried artificial insemination, I wore boxers, everything,” David complains, “This week we finally decided to adopt, and now we have to wait in line behind all these gay couples. It’s just not right!” In Walnut Creek, Mary Crawford’s husband Simon suffered a heart attack when he learned the news. “I went to visit Simon in the hospital,” Mary relates, her eyes welling up with tears, “But there were so many gay men waiting to see their ‘husbands,’ that I had to take a number. This has got to stop!” Even the federal government is feeling the squeeze. “There’s been a huge surge in tax returns for ‘married’ couples filing jointly,” reports Mark Shirm, an IRS auditor. “Many of them have two male or two female names. If they don’t ban gay marriage, we’ll have to bring back the marriage penalty,” he concludes ominously, “Or the government will have to shut down.” Al McKnight, who owns a liquor store in Oakland, also has serious reservations about the new policy. “I’m totally opposed to gays getting married,” he declares. “It’s icky.” But McKnight was open to some forms of gay union. “I don’t have no (sic) problem with lesbians, though.” Julia Henshaw, an elementary school teacher from Sausalito, says that her six-year-old marriage to her husband Hank has changed dramatically over the past two weeks. “Our relationship was going wonderfully. Hank took me out for a fancy dinner on Valentine’s Day, then surprised me with tickets to the Opera!” Julia recalls, smiling at the memory. “Now he just stays out all night prowling the streets of San Francisco with his friends. One of my girlfriends says she spotted them going into a nudie show in the Mission District.” “I blame the gays – if they hadn’t gone and undermined the institution of marriage, Hank wouldn’t be doing this,” Julia concludes. When she learned that President Bush has expressed support for a constitutional amendment to ban gay marriage, Henshaw brightened somewhat. “If you see Hank out there on the streets, you tell him to come home,” she pleads, “Come home to his wife!”
That's hilarious. Almost as funny as Stephen Colbert blaming gay marriage (and him banging his wife's fitness trainer) for the demise of his marriage.
I wonder what George W's special friend Victor Ashe thinks about this. I bet he'll give George a good tongue-lashing. Look, I realize that this is all political posturing that's designed to spotlight Kerry as the far-out Massachusetts liberal that all you am-radio types doubtless believe him to be, but help me out here, please. I know that some people are actually, honestly against gay marriage, politics aside. Can someone explain why? Maybe I'm a little slow, but I just don't get it. I have hunted high and low for a rationalization that's substantive and believable with no success. This is a serious request. Can someone just distill the argument down so I can understand it a bit?
That bit was hilarious, wish I had been in the proper state to fully remember it today. "...and once behind the lat machine. She was really fit, Jon."
The language of the amendment is rediculous. It could easily be read to apply to "common law" marriages between a man and a woman. Think about it. A future (or present!) President who appointed Supreme Court justices and had the Congress in his pocket could proclaim that only "marriages sanctified by the Church" were legal. And his Court could rule that way with an amendment written the way this one is. The problems are endless. The potential for government intruding in everyone's lives is immense.
ABC News Poll 38% favor amendment, 58% say it should be up to the states. 55% oppose gay marriage, while 51% oppose civil unions. According to the article, poll numbers seem to change when the question is asked differently.
does anyone here actually believe this amendment has a chance to get out of congress, much less ever be ratified? even if every republican senator voted in favor of it, you'd still need 17 democrats to get on board. seems pretty farfetched to me.
If it is so farfetched, why did the pResident come out and support it? Answer: Because Karl Rove told him to!!!!
