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Maintaining Optimism in the Face of Reality. Occasional observations on the state of the world, society, business and politics. Usually anchored by facts, always augmented by opinion.


Just Accept That The FMA Doesn't Ban Civil Unions and George Bush Is Not Anti-Gay  | e-mail post

One of the ridiculous claims used to attack the Federal Marriage Amendment (though there are legitimate arguments against it) and Bush's support of the FMA was that it would somehow ban civil unions. This is an absurd claim in so many ways, as I discussed at great length in an update post ("Response on GWB and the FMA") to my original post on the Federal Marriage Amendment. In fact, Eugene Volokh was one of the sources cited by those claiming this restriction. As I said in response to some of the claims then:
Arguments in this vein seem to collapse or at least confuse the meanings of two phrases: "not construed to require that X" (the wording of the amendment) and "construed to require that not X," (a straw man interpretation of the amendment) making the former mean the latter, which it plainly does not.
I actually contacted Volokh to ask him to defend the position attributed to him and he took a pass. My conclusion at the end of the lengthy post snarkily sums up my frustration on the continual confusion about language:
There is just no one on either side of the the issue who is making a credible claim that the amendment can be interpreted in any way other than its plain language. I am amazed it has even been necessary to research the meaning of such incredibly pedestrian English.
Yet today, Michael Totten guest blogging over at Instapundit still seems to be confused about the language as he states:
BUSH ON CIVIL UNIONS: President Bush said today that he favors civil unions for gays, or at least that he doesn’t agree with the Republican Party platform that opposes them. This is news to me. How can he be in favor of civil unions and also back the Federal Marriage Amendment? He can’t, at least not consistently. The FMA would ban civil unions as well as gay marriage. This is a flip I’ll take, as long as he doesn’t flop back on it.
"He can't, at least not consistently" Please...I don't think Michael's insane, but I think this is just one of those examples of a lie told often enough is believed. By the way, Michael's own blog is also quite good.

This actually prompted Eugene Volokh to clearly state his position [alt link](in contrast to the thought experiment-interpreted-as-claim which others have pointed to) that:
So if the FMA is enacted (and note that, as I've blogged before, I do not support its enactment), the result will be almost exactly what Bush suggests: A state could still "choose to" recognize "a civil union" as "a legal arrangement." It would have to do so via a statute -- just as most family law is defined by statute -- not via a court decision or (probably) a constitutional amendment. But it would indeed be free to make such a choice.
If you look at my update post mentioned above, you will find a clear breakdown of this issue, as well as clear indications from the framers and original sponsors of the amendment that basically state the same thing.

I cannot believe that there is still any &^$#*#^# confusion about this issue. If you want to criticize the FMA, that's great, but please don't make claims that are almost as absurd as "Every time you propose the FMA, God kills a kitten."

And of course, one of the key points of my entire discussion on the issue was that Bush didn't suggest the FMA because he is anti-gay. The whole thing that kicked this of is the NY Times piece citing Bush as clearly saying he is not opposed to civil unions. It is about a Bush interview with ABC News' Charles Gibson. I'd like to get a transcript to cite, but here's some comments from the ABC story:
"I view the definition of marriage different from legal arrangements that enable people to have rights. And I strongly believe that marriage ought to be defined as between, a union between a man and a woman," Bush said. "Now, having said that, states ought to be able to have the right to pass … laws that enable people to you know, be able to have rights, like others."

Bush, who supports a constitutional amendment that would define marriage as a union of a man and a woman, says he's concerned about what activist judges will do without clear guidelines.

"Look. If you're interested in preserving marriage as a union between a man and a woman, there is one way to do so, without the courts making the decision. That's through the constitutional process and obviously I think that's the way to go, because I am concerned that courts are making this decision. This is too important a decision to have a handful of judges making, on behalf of the American people," Bush said.
And this from the Times:
According to an ABC transcript, Mr. Gibson then noted to Mr. Bush that the Republican Party platform opposed civil unions.

"Well, I don't," Mr. Bush replied....

Mr. Gibson then asked, "So the Republican platform on that point, as far as you're concerned, is wrong?"

"Right," Mr. Bush replied.

I hope this at least settles the claims on that issue as well.

Update: Tom Kertes at SummerLoveStory praises GWB for reframing the issue of civil unions as well as discusses the implications of the reframing. As an aside, I'm not sure if Tom's an old-school NLP'er or if his "frame" language come from the nouveau discussion among communication scholars. I found Tom's blog by way of...

Jan Haugland, while still beating up GWB, does acknowledge: "However, I have to note that Norway doesn't have gay marriage, "only" a civil union, and I can't really remember gays being particularly concerned about what it is formally called." In fact, as you can read through my post and comment history, it has only been straights that I have found saying that a civil union in lieu of marriage is an unacceptable arrangement. Most gays who have commented seem happy to have the civil union.

e-mail post | Link Cosmos | [Permalink]  |  | Tuesday, October 26, 2004
Comments:
Basically, you are claiming that people who read the FMA that way are projecting their fears concerning the proponents’ real motives, rather than reading the actual language. I think you are right in this assertion, but I don't think people are wrong to be concerned about the underlying motives. Part of constitutional analysis involves an attempt to discern the founders' intentions. I can picture judges some years from now asking what we were trying to accomplish with this amendment. The clear answer is that it is intended to restrict the privileges and discourage the activities of certain segments of the population. Civil unions could easily be construed as one of these undesirable activities.
 
Thanks JJ-

You're right in your claim of the need to determine the framers' intent when interpreting legal texts. However, this argues even more strongly in favor of my claims, as Michael George and Robert Bork, they key legal minds involved in drafting the model amendment, have said that it is not intended to prohibit civil unions, and Musgrave, the original House sponsor, has said the same thing.

All of these individuals can be referenced from my earlier post on the subject (linked to in the post you replied to): Response on GWB and the FMAThanks,

--Barry
 
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