JAGWAK

Spurred largely by the recent decision of the Massachusetts Supreme Judicial Court which would compel the State of Massachusetts to recognize marriage between members of the same sex on the same basis as between members of opposite sexes, conservative groups have begun pushing hard for what they refer to as the "Federal Marriage Amendment" -- an amendment to the federal constitution designed, supporters claim, to prevent the courts from expanding marriage to include same sex partnerships. The general position the supporters take on the amendment is represented fairly well at The Alliance for Marriage's site on the amendment. Stepping aside from the merits of marriage between members of the same sex for a minute, lets examine the amendment and the Alliance's claims about it, since they are the claims usually used to sell it. The text of the Amendment states:

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.

Supporters claim that the first sentence prevents either state legislatures or the courts from "redefining" marriage to include same sex couples, and that the second sentence prevents the courts from creating or allowing "civil unions", "domestic partnerships", or other institutions which provide benefits "associated" with marriage to same sex couples (or other unmarried couples or groups), but leaves state legislatures free to allow this. However, lets look at this closely. Clearly, they are correct that the first sentence clearly restricts "marriage" in the United States to unions of one man and one woman, and does not leave state legislatures or the courts -- or the Congress -- any room to change that. But does the second sentence do what supporters claim, and only what supporters claim?

1. Does it prevent courts from creating "civil unions" or "domestic partnerships" on their own, or from extending marriage-like benefits without those titles? Yes. It prevents any provision of law from being construed to require extending the "legal incidents" of marriage to unmarried couples.
2. Does it leave state legislatures (or populations, where legislation can be passed by citizen initiative) free to create "civil unions" or "domestic partnership" according to the will of the people of the state? No. While the legislature might pass a law which would seem to create such institutions, those rights would not be defensible in court, as the courts would be prohibited from construing any provision of law -- including one passed for that express purpose -- as requiring the state to provide the "legal incidents" of marriage to unmarried couples, including those in "civil unions" or "domestic partnerships".

Besides not providing the freedom to the states that it claims, what else does the amendment do?

1. It would remove all Constitutional protections of equality from marriage. By explicitly stating that the federal constitution could not be construed as requiring states to confer marital status on unmarried couples, it would undo the Loving v. Virginia decision, which found that the Equal Protection Clause of the 14th Amendment compelled states to grant marital status to interracial couples on the same basis as same race couples, and prevent any future decisions securing equal rights to marriage against discrimination on racial or other bases.
2. It might prohibit all marriages -- or at least, all right to marriage -- whatsoever. Legal marriages are created by state laws which require, once it has been determined that certain requirements have been met -- that marital status be conferred upon an unmarried couple. But such laws would be nullified, or at least rendered unenforceable, were the amendment to pass.

So, under the guise of an amendment to "protect" marriage, what supporters of this amendment are really doing is using same sex marriage as a bogeyman to sneak through a broad assault on marriage and equal rights -- not just for gays and lesbians, but for everyone. And what supporters have yet to do, is to explain how marriage between a man and a man, or a woman and a woman, threatens traditional families at all. Certainly they don't believe the existence of homosexual marriages isn't going to make heterosexuals less likely to marry people they love, or to honor the commitment they make? So where is the threat, anyway?