FAITH HEELERS: George McAllister replies to Marc Gellman

[George McAllister is a graduate student in Williamsbug, VA.]

In catching up on the blog after being out of town for a while, I find myself a bit confused by Mark Gellman's response to Andrew Sullivan on 7 Dec. Both here and elsewhere, there is disagreement on what the Federal Marriage Amendment (FMA) prohibits. Sullivan argues that it prohibits all unions between same-sex couples--marriages, civil unions, &c.--while Gellman argues that it does not. Neither of them presents any real argument for their position; they merely assert it. Though I am only a meager law student, indulge me in trying to correct that shortcoming. First, the quote:

"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."

First, what are the "legal incidents" of marriage? The usual list: hospital visitation, Social Security inheritance, and so on. The FMA prohibits construing any constitution or law as requiring that those things be conferred on anyone who is unmarried, and as the previous clause limits marriage to different-sex couples it is forbidden for any constitution or law to be construed as conferring those benefits on same-sex couples. This is a very straightforward and (I expect) uncontroversial construction.

Now a hypothetical. Imagine that after the approval of the FMA some state legislature passes Vermont-style civil unions that confer upon same-sex couples all the legal incidents of marriage save the name. The statute might read, "Same-sex couples get hospital visitation, joint adoptions--you know, all the legal incidents of marriage save the name." What, when read in the light of the FMA, does this law do? Absolutely nothing. For no state law can be construed (by anyone, not just by courts) as conferring the legal incidents of marriage on unmarried people. Therefore this law cannot be construed as conferring those incidents on same-sex couples. It is unconstitutional on its face.

I agree with Sullivan, then, that the FMA would destroy all current and future civil unions. And--speaking now in my role as a meager graduate student in public policy--duh. The proponents of the FMA (present company excepted, of course) are just as opposed to civil unions as they are to same-sex marriage. Only someone with the political and legal acumen of cheese would pass up the opportunity to prohibit civil unions, which are a threat that has repeatedly materialized, at the same time they prohibit same-sex marriage, a threat that is still only hypothetical, though admittedly more real than before thanks to Massachusetts and all that.
posted by Eve at 7:29 PM | link

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