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Response on the GWB and the FMA Post - Update  | e-mail post

I did get a response on my lengthy FMA post from Paul of RightRainbow.com, which was e-mailed as he didn't want to mess around with doing a BlogSpot registration. Here it is:
I read your post. And while your thesis is interesting, it collapses altogether with this sentence:

"Nobody's talking about restricting civil unions or other abridgements of gay rights."

Oh, yes they are; the amendment Mr. Bush supports would ban civil unions.
The text of the proposed amendment reads as follows:

"Marriage in the United States shall consist only of the union of a man and a woman. Neither this Constitution, nor the constitution of any State, shall be construed to require that marriage OR THE LEGAL INCIDENTS THEREOF be conferred upon any union other than the union of a man and a woman."
[emphasis added]

Many scholars of constitutional law -- see, for example, Eugene Volokh -- believe the language of amendment prohibits civil unions, which provide the legal incidents of marriage. Civil unions in Vermont, for example, are marriage in all but name.

I myself would support an amendment to strip the federal courts of subject matter jurisdiction. Gay marriage ought not to be imposed on the Nation by judicial fiat. But the amendment the president supports imposes uniform, national public policy even on those states where the legislature or the voters might be persuaded to allow civil unions or same-sex marriage. I don't want Massachusetts setting public policy for Texas. But I also fail to see why Texas should dictate public policy for California, where domestic partnerships become the law in 2005. One of the blessings of federalism is that we can simultaneously run 50 experiments in law and policy.

Many of the people who support the Federal Marriage Amendment know it bans not only same-sex marriage, but also civil unions. In fact, that's precisely why they support the amendment; they wish to deny any legal recognition whatsoever to gay relationships. That's a legitimate point of view, of course; but folk ought to own up to it.

Again, your thesis -- namely, that the president had in mind the best interest of gay Americans -- is intriguing; unfortunately, it's also inconvenienced by the facts.
First, I think "collapses altogether" is an assertion not merited by the argument presented. I will try to show the courtesy to not to talk down to Paul through the course of this response.

While Paul doesn't provide a link, here is some commentary from Eugene Volokh, in which he writes (I have left unedited):
Now consider another scenario, where my disagreement with Ramesh lies: The New York legislature or the California voters decide to create a "civil union" statute, under whic ks for the state, goes to his human relations director and says "Please add my partner to the insurance policy." "Nope," says the director; "I only add married people to the policy, not you newfangled gay civil unioned types." "But wait," says the employee; "you're required by state law to treat us just like a married personcouple."[sic] "Not so," says the director; "the Federal Marriage Amendment specifically says that no 'state . . . law[] shall be construed to require that marital status or the legal incidents thereof be conferred upon unmarried couples or groups.' You're telling me that I'm required to confer the legal incidents of marriage -- here, addition to the insurance plan that my department reserves only for married people -- on you, even though you're an unmarried couple. But the U.S. Constitution says that I cannot be so required."
First, I think this is a weakly-formulated counterexample. I think Robert Bork's description of it was "unrealistic." Like Bork or not, he actually has sat on a Federal bench and is known to be an extremely strict constructionist. As read, it would seem to imply that the state legislature first passed a law specifying civil unions as being provided with any and all legal privileges which are granted to married persons in the state in contrast to specifying an enumeration of privileges, and the inclusion of civil unions and marriages jointly in legislation. However, even assuming this for sake of argument, I don't think Volokh's example holds water.

I think Volokh may be treating the word "construe" as being synonymous with "read" or even "mean." Although this would seem to suggest the option of Volokh being intentionally obtuse, which seems rather unfair. In any event, the definition of "construe," sharing its root with "construction," is rather different than "read" or "mean" or even "apply," citied here from Merriam-Webster as I can copy and paste it:
1 a : to analyze the arrangement and connection of words in (a sentence or part of a sentence) : translate piecemeal in such an order as to show the syntactical relation of the parts b : to combine idiomatically [the verb trust is sometimes construed with in]
2 a : to put a construction on : discover and apply the meaning and intention of with reference to a particular state of affairs [freedom of the press, literally construed, is the freedom to publish anything at all -- F.L.Mott] [is it within judicial power, in construing the amendment, to abolish segregation -- New York Times] b : to understand usually in a particular way : explain the sense or intention of often to one's own satisfaction or according to or in conformity with a given set of circumstances [construe an action as one pleases]
That is, state law written to clearly and unambiguously require the legal incidents of marriage be extended to unmarried persons would not need to be construed, per se, simply read. The very use of the word "construe" implies the reading of what is not there, rather than the reading of what is plainly stated.

Paul went on to say, in a second message to me:

"If neither state nor federal law can be construed to require "the legal incidents" of marriage, how could a court enforce a civil union statute?"

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. American jurisprudence is predicated on the idea that "that which is not expressly prohibited is permitted," and based on that assumption, it is even less clear to me how this interpretation can be reached.

Volokh even acknowledges that "courts could interpret the FMA differently; courts have certainly interpreted lots of constitutional provisions in ways that don't track their literal text. But it seems to me that the reading I outline is at least plausible -- and I think it's actually the most plausible." Plausible means superficially reasonable. I have no idea what it means to be "most superficially reasonable" in this context. If he had actually said "probable" or "likely" then there is actually a debate.

I will concede that to the extent that the English language is tortured, it is, at most, a contested question as to the meaning of the amendment with respect to civil unions. However, to the extent that Federal courts have tremendous access to legislative materials to allow them to determine the legislative intent of laws they must interpret, to the extent it is necessary, the claims of the sponsors become relevant. So when, the sponsor of the House amendment, Marilyn Musgrave says, "The intent from Day One has been respectful of state legislatures. ... I don't support civil unions, but I'm ready to have those battles state by state," [WashPost] it becomes very clear guidance as to the meaning of the amendment, to the extent that it is even necessary, given the fairly plain-language meaning. And while the President has no role in the process, even in his speech calling for an amendment he clearly suggests that, "[t]he amendment should fully protect marriage, while leaving the state legislatures free to make their own choices in defining legal arrangements other than marriage."

The simple fact that many of the groups, such as Concerned Women for America, feel that the amendment does not provide restrictions on civil unions, that it does not go far enough in their opinion, calls into question such constructions as Volokh suggests.

I will be happy to read citations to other constitutional scholars who feel that Volokh's "plausible" interpretaion is in fact a likely one.

I am candidly surprised that I have recieved, thus far, no argument for the claim that the FMA is objectionable on the fundamental moral grounds that the the denial of the label of "marriage" is itself unfair. That is actually the objection I was expecting, and one that seems more reasonable than claims of hypothetical court interpretations that would defy the common use of the English language.

UPDATE: I have decided for forward this message to Volokh himself to solicit his response, as it seems the most fair. In addition, I have e-mailed Hugh Hewitt, another conservative Con Law professor to solicit his opinion or pointers to other sources that may be relevant.

My message to Volokh read (and included this post quoted inline at the bottom of this message)

Hello Prof Volokh-

I would like to make certain that I am not making a straw man of your argument regarding the interpretation of the FMA.

I would genuinely appreciate your opinion on this issue. You can find a link to the item here as well: http://thehopefulcynic.blogspot.com/2004/10/response-on-gwb-and-fma-post.html

Thank you for you contribution to this debate.

Best regards,

UPDATE: I received a rather unfortunate reply from Volokh just 3 and 1/2 hours after sending the message:

Sorry, swamped, have to pass.

I would have hoped that he had already defended this claim, and could have just pointed me in the direction of a prior rebuttal. I will try to find one in his site, as he seems to be the only person that has been identifed making this claim that is not doing it for some rhetorical purpose aimed at generating hysteria.

I am still looking for anyone to defend Volokh's suggested intepretation of the claim. Anyone.

UPDATE: One person who commented upon my original post pointed me in the direction of an interview with Sandy Rios of the Concerned Women for America regarding her belief that Princeton professor Robert George's belief is that the amendment would bar recognition of civil unions. George's opinion would be relevant as he is one of the people who worked, with Robert Bork and others, on drafting the proposed amendment in 2001. Note that Rios doesn't like the form of the amendment as it was presented because it would permit civil unions, in her opinion. She is quoted as saying:
The disagreement was: Professor George's understanding in penning it was that it would prevent civil unions, and Matt Daniels, who had formed this public entity that had begun to snowball, was selling the amendment based on the fact that he claimed it would not stop states from establishing civil unions.
I'm not a big fan of the game of "telephone" so I thought it would make more sense to look up if Robert George himself has said or written anything to this affect, as I would have thought a Harvard Law-educated Princeton professor would have a better grasp of English. It turns out, he does. In July of 2001 (and reprinted in July of 2004) he wrote for an article printed in the National Review:
Pro-marriage activists are inclined to back an amendment that would read: "Marriage in the United States shall consist only of the union of a man and a woman. 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."...

The Federal Marriage Amendment has a very narrow purpose. It seeks to prevent one very specific abuse of power by the courts, to make sure that on an issue of this importance, they don't confer a victory on the Left that it has not won in a fair contest in the forum of democratic deliberation. The amendment is intended to return the debate over the legal status of marriage to the American people-where it belongs. This amendment would have prevented the Vermont supreme court from ordering the legislature to grant the benefits of marriage to same-sex couples, but would not prevent a fair democratic struggle to decide the question of civil unions one way or the other in Vermont or any other state.
George actually goes on to respond to those who might want to use the constitution to ban civil unions:
Why, some will ask, should we not go further, and use constitutional amendment to settle the issue of civil unions once and for all at the national level? While the legal recognition of non-marital sexual acts and relationships undermines the institution of marriage and should be opposed, the actual threat of the imposition of same-sex marriage and civil unions comes from the courts, not the legislatures. The amendment is thus tailored to the threat at hand. Moreover, it does not depart from principles of federalism, under which family law is, for the most part, a state matter. State autonomy on family-law matters is preserved.
Now, it doesn't seem like George is a good guy to invite to a commitment ceremony, or a swingers' party for that matter, but I hope this would put to rest any possible claim that the amendment, as presented, would prevent the formation and recognition of civil union laws by any state legislature.

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.

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