MARC GELLMAN REPLIES TO ANDREW SULLIVAN: part two

AS: "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."

Why this provision, one might ask? Isn't the first sentence clear enough? Ah, but the fundamentalist right is not content merely to ban civil marriage for gay couples in the United States. They want to ensure that gay couples get no civil recognition at all. So you have a sentence that also bans all "the legal incidents thereof." That could presumably mean everything that civil marriage includes--from the right to visit a dying spouse in hospital to the right to inherit each others' property, share taxes, and so on. It means that every civil union or domestic partnership that now exists in the United States would be void. It invalidates Vermont and California's civil unions. It gets rid of Massachusetts's marriages. It voids even city and locality ordinances that provide some measure of protection to gay couples.

Gellman: The only true thing AS says here is that Massachusetts same sex marriages would indeed be voided because they are marriages between same sex partners, but the FMA does not prohibit, and indeed was created to enable a new category of union (civil unions, domestic partnerships, etc.) to be created by state legislatures if they decide that it is the will of the people to do this. All these ancillary rights referred to by AS could and most obviously would be included in these--all but the title "marriages."

The other reason the FMA is needed is that President Clinton's Defense of Marriage Act, which was enacted to protect states from having to recognize SSM, is widely seen as constitutionally weak and likely to be overturned by the Supreme Court the first time a gay couple married in Massachusetts sues to have their marriage accepted in another state that does not recognize marriage. If DOMA could pass constitutional muster, the FMA would not be needed, but it can't so it is. Perhaps this is the reason AS never even mentions DOMA in his critique of the FMA. And just one word about the McCarthyite tactics of labeling opposition to SSM as a hateful product of the fundamentalist right; in fact every single major candidate for the Democratic nomination in response to the news of the Massachusetts ruling made it clear that they all oppose same-sex marriages, and rather favor some form of state authorized, not court mandated, civil union status for gay couples as did President Clinton when he introduced DOMA. For one so attuned to the nuances of prejudice, it is deeply unfortunate that AS, a brilliant writer and critic, stoops to employ the dirty bigotry against those who take their faith seriously. It does seem that this compromise whereby marriage is restricted to heterosexual couples while granting gay couples substantial rights in a civil union will in the end reluctantly satisfy the vast majority of the fair minded American populace that nevertheless has an overwhelming agreement with the proposition that marriage is and ought to remain the description of the union of a man and a woman.

AS: Some have argued that it only prevents state or federal courts from imposing marriage rights on unwilling populations. But the wording is clear enough. It doesn't simply ban courts from construing state constitutions or the federal constitution to exclude gay couples. It includes state and federal law as well. And it doesn't say, "judicially construe." It says simply, "construe." The intent is clear: to stop any state variation on the subject of marital or couple rights, to impose on the country one single model for civil relationships--heterosexual marriage to the exclusion and abolition of all others. That, of course, means civil unions for heterosexuals as well.

Gellman: Not true. Precisely the opposite is the truth. The FMA is the only vehicle that will prevent a culture war over same sex marriages by protecting the vast cultural consensus that marriage is between a man and a woman while also reserving for the states the right to carve out new forms of state recognized unions for other forms of committed and loving relationships. The proof that this is so is obvious. The entire thrust to create a FMA happened only in response to the judicial end run of those who wanted to see same sex marriages legalized but knew that they could never get any state legislature to support their claim. Their successes in the courts provoked the FMA. Out side of that there was no move to strike down domestic partnerships or civil unions from those with more traditional views.
posted by Eve at 6:02 PM | link

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