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 represents a
dramatic reworking of the U.S.
federal system. By its
terms, it removes from
State prerogative the
regulation of the right to marry, and creates by a stroke of the pen not only a
federal law of marriage, but a federal
constitutional law of marriage. In so doing, it
divests the State
courts of the
power to interpret their state law and their state constitutions.
Those who - with the exception of
Bush v. Gore, 531 U.S. 98 (2000) - have always argued in favour of "
states' rights" are now advocating a massive
intrusion into the most
fundamental sphere of State power. The
irony of this
hypocrisy should be lost on no one. If the near-unanimous rejoicing of the
Right at
Bush v. Gore's denial to the States of the previously unquestioned power to
construe their own laws were not proof enough that the
invocation of "states' rights" is entirely
result-driven - concerned not with
principled application of the
law but with
manipulation of the law in order to obtain the desired
result, then the FMA should convince all but the intentionally ignorant.
It is argued by some supporters of the FMA that its only purpose and sole effect will be to stop "
activist judges" (a delightfully flexible term that is applied to Justice
Anthony Kennedy when he authored
Lawrence v. Texas, __ U.S. __, but not when he cast his vote in
Bush v. Gore) "legislating from the bench." If this is indeed the intended effect of the FMA, then it is an example of exceedingly poor
drafting. Anyone who would
draft an
amendment with the text of the FMA to serve that purpose should not be allowed near a
municipal ordinance, much less something as
momentous as a
constitutional amendment.
But this is unlikely the result of
egregious incompetence. Even the most inexperienced drafter would know to borrow the language of § 3(a) of the
Defense of Marriage Act (DOMA) if the purpose were to prevent "activist" judges from construing the law to create an
implied right of
same-sex marriage. But the FMA is
radically different from the DOMA.
The DOMA has two basic
provisions. § 2(a) operates to give the States
plenary power to recognise or deny recognition to out-of-state same-sex marriages. § 3(a) provides that the definition of "marriage" in
federal law excludes same-sex marriages from its
scope. While there are serious constitutional questions about the
validity of the DOMA, it does not effect a
wholesale usurpation of State power. If a State wishes to recognise out-of-state same-sex marriages, the DOMA does nothing to
impede it. If
Congress should reverse course and recognise same-sex marriages, it may do so by
enacting an appropriately worded
statute.
If the drafters of the FMA merely wanted to
ensure that the DOMA would withstand
constitutional challenge and that same-sex marriages would be the prerogative of State
legislatures, then they've really
made a hash of it. By its own terms, the FMA provides that "
Marriage in the
United States shall consist only of the
union of a man and a woman." This is breathtakingly broad for an assertedly
narrow purpose. If it means anything at all, this
clause renders
unconstitutional any attempt by a State, federal, or
territorial government to recognise anything falling within the as-yet undetermined constitutional
definition of "marriage" between same-sex
couples. In order to exclude same-sex marriages from federal law, reserving to the States the right to recognise or decline recognition, they need only say "Congress shall make no law defining marriage as anything other than the legal union of one man and one woman." This would leave the power of the States intact, and maintain the
traditional balance of federal and State power.
Instead of leaving the States with their
Tenth Amendment power to regulate matters of traditional
State concern, a power states already lacked with regard to citizenship prior to the Fourteenth Amendment (as the Constitution reserved such matters to Congress), the FMA creates a whole new branch of federal constitutional law, one that is more poorly defined than any other. While speaking in broader, more sweeping terms than almost any other provision of the Constitution, the FMA fails to
define any of the new
concepts that it attempts to introduce into federal
constitutional law. For example, the FMA refers to "union between a man and a woman." This is deceptively simplistic. What constitutes a "union between a man and a woman?" How does one determine the "constitutional sex" of
hermaphrodites, born with the external (and sometimes internal) sexual characteristics of both sexes? What about women with
testicular feminisation (
Androgen Insensitivity Syndrome [AIS]), who have all the outward appearances of women, and have no reason to believe they are anything else, but have an unexpressed
XY chromosome? If a "man" in the constitutional
sense marries a woman with AIS, does this
constitute an unconstitutional same-sex marriage? If this amendment is interpreted in the manner suggested by the
Texas Court of Appeals' decision in
Littleton v. Prange, people would need a
karyotype or a
DNA test in order to be sure that their marriage was constitutionally valid. Indeed, the result of the FMA, if so construed, would be either to prevent certain persons of
biologically indeterminate
sex from marrying altogether, or to
require them only to enter into same-sex marriages.
Transsexuals, too, face similar problems, although one doubts that the Amendment's drafters are particularly concerned.
Similarly, the FMA would create certain undefined constitutional "incidents of marriage." Of course, when determining the legal effects and incidents of marriage, courts have traditionally looked to State law, something the FMA would expressly prohibit if State law somehow conferred a constitutional "incident of marriage" onto a same-sex couple. Similarly, the FMA would require all "
civil unions" to be rendered
null and
void; it is well established in constitutional law that a State cannot simply rename things in order to get around constitutional requirements. A state can't label an
offence that carries a five-year
sentence a "
misdemeanour" in order to circumvent the right to
counsel and a
jury trial. Thus, there would have to be an actual constitutional definition of what a "marriage" is in order to develop a constitutional definition of the "incidents of marriage."
On this subject, the FMA simply
chases its tail: the Federal Constitution would include "constitutional marriage law," but provide no real definitions of its own. Thus one would have to
resort - as has been done for two centuries now - to State law to determine what a "marriage" is and what it
entails. Except that the FMA
prohibits resort to State law to the extent that State law is inconsistent with the FMA. This will leave judges in the position of having to make things up as they go along, the
quintessence of judicial activism.
In sum, the FMA creates a massive,
amorphous, and
tautologous body of federal constitutional law that both
usurps the States' traditional roles as
laboratories of democracy and leaves
federal judges to
legislate from scratch. In so doing, it also destroys one of the traditional tools of
grass-roots activism, from the
Abolitionists, through the
Sufragettes, on through the
civil rights movement - going from the local level to the national. Of course, much like the similarly
reactionary "
Flag Protection Amendment," this constitutional
spawn of the
fringe Right will likely do no more than stir up
alienation and
resistance in the
electorate.