Tidbits for Political Junkies with Short Attention Spans & Hearty Appetites


Wednesday, March 24, 2004

Constitutional Tinkering, Re-Tinkered...

The Clarke book – and the ensuing White House smear campaign – have so dominated the news over the last few days, that you might have overlooked this item.

In brief, Wayne Allard (R:CO), one of the original sponsors of the moribund turkey known as the Federal Marriage Amendment, has announced a slight revision:

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.

As you see, all he’s done is strike five words ("nor state or federal law")– claiming, in the process that this protects the ability of states to legislate Civil Unions. Perhaps.

More to the point, however, the FMA in its new form still preserves its most odious characteristics. It still prevents judges in every state from interpreting their own constitutions in such a way that would require anything even resembling civil marriage. Pretty hideous on Federalist grounds, never mind flat out mean.

Jack Balkin, always an astute observer on this topic, offers this:

The irony of the new version is that legislatures could pass civil unions laws as long as they did not believe that they were interpreting the state or federal constitution and promoting constitutional values-- such as equal protection of the laws-- by doing so. For then the legislature (or the executive official) would be construing the state or federal constitution to require civil unions.

Put another way, if legislatures sincerely believed that civil union laws were necessary to protect important constitutional values of equality and civil rights for gays and lesbians, they would not be permitted to pass such laws. On the other hand, if the legislature thought that a civil unions bill would bring more tourism into the state, that would be a permissible reason.

But of course, that's what the authors of the proposed amendment think about equal rights for gays-- they don't see it as an issue of civil rights. And that's precisely where they're wrong.

I couldn’t have said it better myself.


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