KUNG FU FMA FIGHTING: Eugene Volokh vs. Ramesh Ponnuru

...As I've argued earlier, imagine that the New York legislature or the California voters decide to create a "civil union" statute, under which gays can enter into such a union. The statute then requires all state and local government officials to treat civil unions as tantamount to marriages, for purposes of child custody, divorce, intestate succession, wrongful death litigation, and so on. ...

This is a creative argument, but I don't think it's quite right. First, if this argument is accurate, then the FMA probably wouldn't even block judicially created civil unions, the very thing that Ponnuru says it would do, since Ponnuru's argument likely applies equally to judicially and legislatively created civil unions. After all, if a court says "Under our state Constitution's equal protection clause, discrimination against gay couples is not allowed; therefore, committed gay couples must get the same benefits and burdens as married straight couples," then it's likewise simply eliminating any "incidents" of marriage under state law, except for the label of "marriage." These benefits and burdens have "cease[d] to be an incident of marriage," and can thus be awarded to gay couples. (This isn't an open-and-shut argument; maybe courts can come up with some way of distinguishing judicially created civil unions and legislatively created civil unions for purposes of the second sentence of the FMA. But I think that such a distinction would be hard to support.)

Second, "the legal incidents of marriage" is an ambiguous phrase. It could be interpreted the way that Ponnuru and the scholars he cites suggest, as "those things that state law provides only to married couples." Or it could be interpreted as "those things that law has traditionally provided only to married couples," or even "those things that married couples generally do." See, e.g., Collins v. Guggenheim, 631 N.E.2d 1016 (Mass. 1994) (saying that "We have not permitted the incidents of the marital relationship to attach to an arrangement of cohabitation without marriage," which suggests that applying some such incidents to cohabitation would be "permitt[ing] the incidents of the marital relationship to attach to [a nonmarital one]," rather than that it would somehow destroy the incidents' status as incidents of marriage); McGruder v. Frank, 825 F.Supp. 1300 (S.D.Ohio 1992) ("Unfortunately in our society domestic violence is probably the most prevalent form of interpersonal violence, including violence between persons not legally married but involved in relationships which have some of the same incidents of marriage."); Cook v. Cook, 798 S.W.2d 955 (Ky. 1990) (Lambert, J., dissenting) ("By its decision, the majority has encouraged spouses receiving maintenance to refrain from marriage, safe in the knowledge that they may establish relationships which have all of the incidents of marriage if only they maintain the fiction of separate places of dwelling."). In all these cases, the courts were treating "incidents of marriage" as something that even unmarried couples may possess -- and when that happens, the right or behavior does not "cease[] to be an incident of marriage"; it remains an incident of marriage, though one that unmarried couples possess together with married ones.

And if courts do treat the ambiguous phrase "incidents of marriage" as referring to the benefits, burdens, and practices that have traditionally accompanied marriage, then legislative civil union statutes may well become unconstitutional or at least unenforceable: As I said before, government officials would be prohibited from construing the statute according to its literal text, as providing some of the traditional benefits of marriage to unmarried couples. And if someone goes to court to challenge the official's refusal to provide such benefits, then the court court would likewise be forbidden from construing the statute according to its literal text.

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posted by Eve at 3:43 AM | link

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