AN FMA EVEN A SAME-SEX MARRIAGE SUPPORTER CAN LOVE: Eugene Volokh

[SSM opponents might want to ask ourselves whether that's a point in favor of the Hatch language, or against it.--Eve]

Sen. Orrin Hatch proposes an alternative Federal Marriage Amendment, which even I would support in principle (for reasons mentioned over the last couple of weeks):

"Civil marriage shall be defined in each state by the legislature or the citizens thereof. Nothing in this Constitution shall be construed to require that marriage or its benefits be extended to any union other than that of a man and a woman."

This means that states will be free to decide this for themselves, which I think is right -- it will both keep federal courts from forcing Utah to recognize gay marriage, and keep the rest of the country from forcing (say) Oregon not to recognize gay marriage.

In practice, I think that, as with many proposals, we need to think carefully about the language. For instance, wouldn't this (inadvertently, I suspect) prohibit common-law marriages, and perhaps even void existing ones, at least in states where common-law marriages really do flow solely from judge-made rules, with no statutory authorization? ...

In any case, this isn't a fatal problem; the solution to it is to change the proposed draft, not reject it. But it's worth thinking hard about such problems up front.

UPDATE: I neglected to mention one other objection, which goes more to the core of the proposed Amendment (I had thought of this and blogged about this point in the past, but just didn't think much about it when writing the post above): I suspect that the first sentence is intended to (and is likely to) prevent state courts from forcing legislatures to recognize same-sex marriages under state Constitutions, much as the Massachusetts Supreme Judicial Court did. In addition to outlawing common-law marriages -- likely an unintended result -- the amendment would probably also prohibit such state constitutional decisions, likely the intended result.

I think that's a mistake. I disagree with the Massachusetts court's decision, but that should be a matter for Massachusetts legislators and voters to correct, not for the rest of us to mess with. I think the solution both to this problem and to the common-law marriage problem is to just use the second sentence, and drop the first.

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posted by Eve at 1:38 PM | link

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