MORE VOLOKH ON HATCH FMA

...None of these outcomes are certain (though I think the prohibition of common-law marriages would take a lot of textual squirming for courts to avoid). But they are plausible enough that they counsel in favor of correcting the language to avoid these problems.

My preference would be just to stick with the second sentence: "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 won't overrule Goodridge, but as I mentioned, I think that the Massachusetts voters should save themselves from the Massachusetts Supreme Judicial Court, rather than having the rest of the country save them. But if you must overrule Goodridge, then at least do it more clearly: "Nothing in this Constitution or in any state 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."

The one bad side effect of this is that it would prevent voter-approved state constitutional amendments authorizing same-sex unions; but that's not a huge problem, I think, since legislatures and voters would still be free to authorize such unions (or marriages) by statute, which is how marriages are generally defined. But if you really worry about that, try something like: "No provision of this Constitution or of any state 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, unless the provision explicitly provides for such an extension." ...

In any case, any of these proposals would, I think, be better than one that includes the buggy first sentence from the current proposal.

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posted by Eve at 5:25 PM | link

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