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February 26, 2004

FMA: Balkin's Version

Jack Balkin, legal scholar proposes amending the FMA to read properly. I agree with him. If it should be done, it should be done right. Damn lawyers! What they can do with a single sentence - they obfuscate purposefully.

If the FMA had been designed to do what its proponents claim it will do, it should have been drafted as follows:
Section 1. 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 be conferred upon unmarried couples or groups.

Section 2. Nothing in the first section of this Article shall be construed to prevent either Congress or the legislatures of the several states from providing any other benefits, rights, or privileges, or combinations thereof, to unmarried couples or groups.

Thus, Congress and state legislatures may provide all of the incidents of marital status except marital status itself. As you can see, such an amendment is not particularly difficult to draft. The fact that there is a gap between what the text says and what the Alliance for Marriage says the text will do suggests to me that they are not being entirely forthcoming about the reasons for the Amendment.

Posted by mbowen at February 26, 2004 04:42 AM

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Tracked on March 15, 2005 12:22 PM


Andrew Sullivan has published a rather damning critique of FMA. It is not his own critique, but that of an unnamed lawyer. Here it is:

Now that opponents and proponents of gay marriage are all riled about the FMA its time to talk about the true impact of including a definition of marriage in the Constitution. The potential impact of inclusion of the FMA will effect every American straight or gay because the FMA is not about gay marriage, it is a dangerous Trojan Horse that could completely redefine the powers of the federal government. As an attorney who is researching this issue, let me explain to the best of my ability, why I havent been sleeping well since Tuesday.

Under the Constitution of the United States there is no express right to privacy, rather this right to be free from excessive government interference in our personal lives has arisen from Supreme Court precedent that cites the lack of regulation of intimate relationships and the protections of the bill of rights as the basis for an inference of the right to privacy. The right to privacy, according the Supreme Court is found in the penumbras and emanations of these two factors. A shadow of a right, very delicate and now threatened.

By including a provision regulating the most intimate of relationships into the Constitution, the traditional analysis that the court has used to limit government power will be fundamentally changed and the right to privacy, if it is not destroyed completely, will be severely curtailed. As a result, decisions like Roe v. Wade, (Abortion), Griswold v. Connecticut (Birth Control), Lawrence v. Texas (Private Sexual Acts), will all be fair game for re-analysis under this new jurisprudential regime as the Constitutional foundation for those decisions will have been altered. A brilliant strategy really, with one amendment the religious right could wipe out access to birth control, abortion, and even non-procreative sex (as Senator Santorum so eagerly wants to do).

This debate isnt only about federalism, its about the reversal of two hundred years of liberal democracy that respects individuals. So why isnt anyone talking about this aspect of it?


Posted by: Bill Benzon at February 27, 2004 03:07 PM

I agree with what's being said here. This isn't something worth amending the Constitution for because, as I said, there is no danger. There is only one way that this matter can pass an Amendment, but the activists for the gay cause are not that capable of raising that much antipathy in the States. Bush can mouth off all he wants, but he's running out of ammo.

Posted by: Cobb at February 28, 2004 03:57 PM