When Marilyn Musgrave’s proposal for a constitutional amendment to ban gay marriage was unveiled, one of the many areas of debate focused on civil unions. Some backers of the “Federal Marriage Amendment” insisted the text would allow states to create civil union statutes on their own, while others said the language would do the opposite. (I argued the latter.)
Apparently, the confusion led the proposal’s backers to make a subtle change in the language. Don’t worry; it’s still awful.
Here’s the original text of the FMA:
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.
And here’s the revamped FMA:
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.
Obviously, the first sentence is entirely new. It’s pretty unambiguous. Then there’s the matter of removing the “nor state or federal law” phrase, which is supposed to be the heart of the change that clears the way for states to pass civil unions laws, if they’re so inclined.
Aside from the fact that the FMA is discriminatory trash that has no place in the U.S. Constitution, this change will probably make it easier for states to pursue alternatives if they so chose. But I’m afraid the changes don’t go quite far enough to make any of this even remotely palatable.
By including state constitutions in the FMA’s ban on same-sex marriage, proponents are still cutting off a key avenue for supporters of civil unions. As Eugene Volokh told the Washington Post, the FMA is “still trying to stop state courts” from requiring gay marriage or civil unions. “I don’t see why the nation as a whole should be saving the voters of each state from the misjudgments of their own state judges. That’s something that each state should do on its own,” Volokh said.
I think that’s absolutely true. Vermont is the nation’s only state with a civil unions law, but if the FMA were in place at the time, the Green Mountain State wouldn’t have the law today. Supporters pursued the matter in state courts, appealing to justice under the state constitution. Ultimately state courts said the state legislature had to reconcile the inequality. And yet, the FMA insists that that U.S. Constitution and all state constitutions must not be read to require this form of equality.
So much for states’ rights.
The good news, if there is any good news, is that at least some in the religious right seem to hate the new changes. As the LA Times noted:
Concerned Women for America, which opposed the original amendment because, the group argued, it would allow states to legalize civil unions, said in statement that the rewording was worse.
The new amendment “still allows for the erosion of marriage by allowing states to create civil unions,” said Robert Knight, director of the Culture and Family Institute, an affiliate of Concerned Women for America.
Ultimately, all of this seems moot. Those who hated the FMA before will continue to hate it and the thing still stands no chance of actually passing both chambers of Congres by 2/3 vote.
As Christopher E. Anders, legislative counsel to the ACLU, told the Post, “[T]here won’t be a single member of Congress who will change his or her position on the constitutional amendment because of this.”