Legal Incidents of Marriage
The proposed 'Musgrove Amendment':
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.
Andrew Sullivan and Eugene Volokh disagree with The New York Times on whether the Musgrove text for a Federal Marriage Amendment would outlaw civil unions. While I'm probably out of my league taking on Prof. Volokh, in this case I think he's letting his natural inclinations towards acceptance of gay marriage get the best of him, and he's neglecting the role of legislative creativity. The amendment does just what it's supposed to: stop judicial activism while leaving legislatures free to do as they will. Why?
Prof. Volokh's objection arises because he thinks that it would be impossible to make a valid civil union without it having the 'legal incidences of marriage.' He explains:
A gay couple enters into such a union. One partner, who works 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 couple." "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."...Then the employee goes to court to demand the benefit. "Sorry," the judge says. "The Federal Amendment bars me from construing the state law to require that this benefit be conferred on you. Yes, I know that the statute says exactly that. But the FMA doesn't allow to construe the statute that way, even if that's the statute's clear meaning. You'd be entitled to get the benefit under the statute, but the FMA trumps the statute.
So far, so good, but both Volokh and Ramesh Ponnuru, to whom he's responding, underestimate the language. First, let's admit that if we've got a Supreme Court or a state court who are willing to look at legislative history, Volokh's worries are unfounded--as Ponnuru points out, there's enough legislative history there that a sympathetic bench can do what it wants. But even suppose we've got dozens of genetically-cloned Scalias in this state, I can't see why a creative legislature could not rewrite its marriage code to get around Volokh's difficulties. While the final output would be more complicated, the gist of the regulation would run:
- This state recognizes civil unions between any two individuals, regardless of sex.
- The legal incidences of such civil unions are (bereavement leave, adoption rights, yada yada yada.)
- All individuals who have been married in the state of X shall also be joined in such civil unions, and shall enjoy the rights and privileges listed in 2.
- All individuals who are married shall (insert laundry list of rights which you wish to give only married couples, but keep from civil unions).
Why does this matter? Because in the case Volokh gives, the court is no longer construing a legal incidence of marriage upon a civil union. Rather, they are construing an incidence of a civil union upon a married couple, something which is not forbidden even by the plain language of the text. Yes, it involves a fair amount of legislative gruntwork, and I don't pretend that the 'legislation' above would be sufficient, but it's illustrative of structure. After all, there's nothing that says a state must recognize marriage as a legal state at all.
Note, however, that this only works one way. A legislature can rewrite its marriage code such that there's no construing going on in the one direction that such construction is forbidden: from civil union to legal marriage. But a judge, who can only construe in one direction if civil unions don't already exist, is quite nicely stopped from interfering.
Now, I may be wrong, and there may be some way that the simple legislation I've outlined above would fall afoul of case law. But there's nothing in the Musgrove Amendment that seems too difficult for a determined legislator to get his hands around. Of course, the fact that it's so appealing may be because it plays to my personal prejudices: get rid of legal marriage altogether and just adopt universal civil unions.
In any event, Volokh writes: "When you're deciding whether to support a proposed amendment, I think it's important to think about these ambiguities. Even a 50% or a 25% chance that an amendment will be interpreted to yield bad results might offer enough reason to oppose it." But we've already determined that the legislative history will support a sympathetic and 'activist' judge. Even a sympathetic yet textualist judge and a competent legislature can surmount the problem of language. Which means that the only judicial difficulty we'd have is a judge so rock-set against gay marriage that he cannot be persuaded that Musgrove allows it--one who is making conservative policy from the bench. But if that's the case, how is anyone worse off than before the FMA passes?
Comments
Posted by: Joe D. | February 11, 2004 9:56 AM
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