Is it time to BOYCOTT MARRIAGE yet?

What does the Federal Marriage Amendment say?
According to this website, the original language restricted marriage to opposite sex couples:

“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 under state or federal law shall be construed to require that marital status or the legal incidents thereof be conferred upon unmarried couples or groups.”

That was back in May. Since then, the language seems to have undergone a change.
The following is the language at the official Alliance for Marriage web site:

FEDERAL MARRIAGE AMENDMENT (H.J.Res. 56)
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.

That is very different. The broad, sweeping language of the Amendment does much more than prohibit same sex marriage.
Let’s take the phrase, “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.”
That means, simply:
“no state or federal law shall be construed to require that marital status or the legal incidents thereof be conferred upon unmarried couples”
In the most literal sense, the plain language could be interpreted as prohibiting all unmarried couples from ever marrying! For if “marital status” is prohibited from being conferred upon unmarried couples, then how might any unmarried couple ever legally marry?
Certainly the drafters never intended such an absurd result.
What they obviously meant to say was:
“no state or federal law shall be construed to require that the legal incidents of marriage be conferred upon unmarried couples or groups”
Among other things, the legal incidents of marriage include the right to inheritance, to insurance, to hospital visitation, and possibly even cohabitation! No law passed by any state could ever be construed to confer any of these things, if the dastardly thing passes.
Note that the AFM’s website disingenously claims that “BENEFITS ASSOCIATED WITH MARRIAGE” would be the “Decision of State Legislature.” Sure, the State Legislature could still “decide” to pass laws which might appear to be conferring benefits, but courts would be forbidden to construe them the way they might appear! Thus, any such legislative acts would be legally unconstitutional, and about as meaningful as the pre-Lawrence sodomy laws. (Nice ironic twist, eh? Any wonder these folks are called “hateful”?)
Note that the text is silent about the sex or sexual orientation of the “unmarried couples.” That means, then, all unmarried couples, heterosexual or homosexual!
As Andrew Sullivan said, these people know what they’re doing:

That language doesn’t need to be in there if you’re just banning marriage for gays. If you merely wanted to keep the word marriage from gays, you would simply withhold “marital status.” But by barring “all the legal incidents” of marriage – in state or federal law – the amendment would render all civil unions and domestic partnerships legally and constitutionally void everywhere in America. The religious right know what they’re doing.

I think the president has made a major mistake in supporting this attempted smear against the Constitution. If it is passed, it will live in infamy.
As Glenn Reynolds made clear, the future is not with its proponents.
PUZZLING QUESTION: I couldn’t help noticing the date this odious measure was introduced: May 21, 2003.
Just a coincidence?
I wonder….
UPDATE: Eugene Volokh describes (by hypothetical example) how civil union legislation, even though passed by state legislatures, could in fact be nullified by this amendment, and he asks,

if the amendment is still in the drafting stages, why not modify it to avoid these ambiguities in the first place?

Why? Because they have already modified it — not to avoid ambiguities, but to create them!


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8 responses to “Is it time to BOYCOTT MARRIAGE yet?”

  1. James Barber Avatar
    James Barber

    This amendment will not simply devastate gay couples. Per ACLU:

    The proposed federal amendment, the ACLU said, would undermine state domestic partnership, adoption, foster care and kinship care laws. It would deny all unmarried couples – regardless of sex – all legal protections for their relationships by overriding any federal or state constitutional protections and federal, state and local laws. In many states, unmarried persons – including unmarried relatives, heterosexual couples, and even unrelated clergy members – have the same rights as married persons to jointly adopt or provide foster care or kinship care.

    This is really, really bad. Made even worse is that I still keep hearing people who are blase about this amendment say “ah, it’ll never get to 38 states, don’t worry”. Bullshit. We live in an increasingly hostile, homophobic country. Most of the state legislatures are anti-gay. 38 states have DOMA, and there are more on the way. This WILL be ratified in 38 states within 2-3 years of getting out of the Senate.
    The Senate should be our main priority. That means making sure that the pressure is on the Democrats and that we do our best to elect anti-FMA senators and get rid of those who support the FMA. Getting people like Feingold reelected (he’s up this year) is very important, as Feingold has said he will fight this amendment tooth and nail.
    I’m really worried here, Eric. I’m not surprised; I’ve known this was coming since last June. I’m just worried because so many things I used to believe about this country and the GOP are gone now, and they’re not coming back. I get tired of hearing “I told you so” about the Republicans. I get tired of hearing the few gay Republicans I know who are left say things like “Clinton wasn’t any better”. I get tired of hearing people say “oh well I have nothing against gays”, and yet they vote for anti-gay politicians anyway. I’m tired of the infighting and sniping which seems to go on instead of mobilizing against this monstrosity.

  2. Eric Scheie Avatar

    Thank you for your comment, James. Compromise and even dialogue now seem impossible. I have tried to offer a sane and balanced perspective on this, and while I’m sure you and many others think this is foolish, I have tried to argue against government entanglement in same sex marriage from what I consider a libertarian perspective. I understand the misgivings of many people, and I have found it frustrating that so many gay activists refused to even consider the downside of marriage, which I think should be voluntary, and private.
    The ACLU and Andrew Sullivan are right. This proposal would federalize ALL marriage. I think it will do more to politicize what used to be personal and private than anything the gay activists were doing.
    But what pisses me the most is to see a drastic, radical measure passed off as a compromise which would allow civil unions, when its plain language forbids any such legal arrangement. The deceptive language at the official Alliance for Marriage web site is self-apparent.
    This initiative is an attack on freedom masquerading as the preservation of marriage between a man and a woman. Even heterosexual unions — anything less than marriage — would be outlawed.
    I oppose it resolutely.
    If it passes, I hope that supportive heterosexuals will join homosexuals and engage in civil disobedience by entering into civil unions in as many places as they can as a form of solidarity.
    BOYCOTT MARRIAGE?
    Why not?

  3. Steven Malcolm Anderson Avatar

    I have made a vow (stated on my blog) that, should I ever meet the woman I want to marry, I will not marry within the United States* until every man is free to marry the man he loves and every woman is free to marry the woman she loves.
    (*If I do marry until then, it would be in Canada or the Netherlands, and I would take care to make it abundantly clear to the U.S. government why this was so.)
    That I have vowed upon the altar of every God and of every Goddess, and upon my honor as a free and just man.

  4. Steven Malcolm Anderson Avatar

    Oh, yes, I must mention that, in a reply to Andrew Sullivan over this question, Stanley Kurtz (of the “National Review”) charged Sullivan with “slamming the honesty of social conservatives”. Indeed, and how terrible of Sullivan. Why, that’s like questioning the patriotism of Johnny Walker Lindh!

  5. Steven Malcolm Anderson Avatar

    “Oh, why do we need a written agreement? Don’t you trust me?”
    “Oh, you don’t need to _read_ this long documents. Just sign it. Don’t you trust me?”
    “Oh, yes, I know this clause gives me the right to act without consulting you, but you know I’d never do that. Don’t you trust me?”
    “Yes, I did act without consulting you, but you know it was for your own good. Don’t you trust me?”
    “Yes, I did take $50,000,000 out of your account, but you know I’ll pay it back next month. Don’t you trust me?”
    “Yes, I know it’s been six months since I borrowed $50,000,000 from you, but you know I’ll pay it back next year. Don’t you trust me?”
    “Yes, I did buy an airplane ticket to a country in South America that has no extradition treaty with the U.S., but you know I’ll never use it. Don’t you trust me?”

  6. Steven Malcolm Anderson Avatar

    TOO many good things, _too_ many things to comment on here. The things you pick up that I’ve never seen or thought of before!
    That date May 21. They’re a bunch of Dan Whites. They’re secretly very happy that Harvey Milk was murdered and that White got away with it. They don’t like the fact that, ever since Matthew Shephards’s was publicized, their thugs are not as likely to get away with it. They’re cowards who like to sit back and have thugs do their dirty work for them while hiding behind a mask of “respectability”.
    And that literal interpretation: the status of marriage cannot be conferred on the unmarried. It would be fun if, should that abominable amendment pass, we could get officials to refuse to issue licenses to anybody at all, based on that intepretation. ha! ha!
    Other strategies of protest? A mass burning of marriage certificates by honorable hetero couples? Interesting questions about it all…. We’ve got to stop that amendment from passing, period. Bush has forfeited any possibility of ever getting my vote by pandering to those scum. He still could surprise me between now and November, turn around and unequivocally denounce them and their [expletive deleted] amendment, if he did that I’d vote for him, but that’s not bloody likely, so… no go.
    I, from now on, don’t give a damn how much of a “war hero” he postures as. Harsh, but that’s the way I feel right now. That’s the way I am.

  7. DiscountBlogger Avatar

    UNINTENDED CONSEQUENCES

    If the FMA goes through as written: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…

  8. DiscountBlogger Avatar

    UNINTENDED CONSEQUENCES

    If the FMA goes through as written: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…