The Anti-Gay Marriage Amendment, Annotated

As I was writing the earlier post about an ABJ slant piece on the anti-gay marriage amendment it struck me that the paper didn’t reprint the actual language of the proposed amendment in the piece. Among the journalistic flaws in the article was the author’s willingness to let the two sides yammer at each other rather than seek some more objective information such as a constitutional law expert. Or – and this would be simpler – just reprinting the amendment.

So I went off in search of. Oddly, finding the actual text proved harder than one might think. I couldn’t find it on any of the usual suspect activist organizations on either side. Weird. It’s on the Congress website, but you have to know where to look. It's S. J. Res. 1 if you're into that sort of thing.

So here’s the amendment, with some rudimentary analysis. To facilitate my thoughts, I’ve flagged the sections that merit comment with numbers corresponding to the discussion below. If I really had html chops, I’d embed links so you could toggle back and forth from the text to the comments, but I don’t so I didn’t.

SECTION 1. This article may be cited as the “Marriage Protection Amendment”[1].

SECTION 2. Marriage in the United States shall consist only of the union
of a man and a woman.[2] Neither this Constitution, nor the constitution of any
State[3], shall be construed to require that marriage[4] or the legal incidents
thereof[5] be conferred upon any union other than the union of a man and a
woman[6].

[1] If you had any doubt that this proposal is anything but a craven pander to the conservative base, look no further. No other Constitutional amendment tells us what to call it. As Orwellian – or perhaps Rovian – as the appellation “Marriage Protection Amendment” is, the idea of enshrining it into the Constitution is just perverse.

I find myself particularly offended by this. Partly it’s because I hate spin as much as Bill O’Reilly pretends to. This Constitutionalization of spin absolutely rankles me.

What’s more, as a married hetero I object to being made party to all this. “Marriage Protection Amendment” conjures images James Dobson sputtering about nasty gays trying to lure good married people away from each other with all their . . . their . . . their gayness. My marriage doesn’t need that protection, thank you very much. The “Marriage Protection Amendment” protects nothing, except perhaps some delicate traditionalist sensibilities.

[2] This is the motor of the thing, though it isn’t clear how far it runs. The Constitution doesn’t as a rule outlaw conduct among American citizens. Instead it generally grants and/or limits governmental powers. So, for example does it only prevent states from calling same-sex unions “marriage?” If a state allows a same-sex unions and calls it “schmarriage” are we OK? Not clear.
Meanwhile, I’m intrigued by the parallel between this amendment and prohibition. Both limit individual freedom without commensurately granting more freedom elsewhere (in contrast to abolition of slavery.) Both tread heavily on areas of traditional state concern. So the only real precedent for doing this sort of thing in the Constitution was an abject failure. In searching for something to call this other than the Marriage Protection Amendment, opponents of the measure could do worse than “Gay Marriage Prohibition.”

[3] I’m surprised this isn’t raising more of a hue and cry from the law professoriat. Never has the US Constitution prescribed how a state constitution would be interpreted. Indeed the assault on State’s rights is an underreported objection to the amendment. It has also caused some fractions in the Libertarian/Republican alliance as this Reason piece demonstrates.

But then, Republicans haven’t really cared about State’s rights since the civil rights era. From No Child Left Behind to proposals for tort reform and limiting States’ authority to regulate firearms, Federalism is pretty much dead as a matter of real concern for conservatives, except when it works as an makeweight objection to something they don’t like already.

[4] If the proponents of the amendment were serious about their fear of “activist judges” imposing gay marriage on the populace, this is all they would need. Simply saying “this Constitution shall not be construed . . .” takes care of any possibility that a court might construe otherwise. As noted above, the real guts of the thing is a ban – er, prohibition – on same-sex unions. But all that assumes that the talk of activist judges is a real concern as opposed to cynical political gamesmanship. (Aside: How surreal was it to read Bishop Josephus Johnson thumbsucking about activist judges. Has my man never heard of Brown v. Board of Ed – decried for years after as the worst sort of judicial activism?)

[5] So what are the legal incidents of marriage? Does this cabin the ability of state courts to find a right to same-sex unions? Probably, but unclear.

Meanwhile, I’m happy to report that while the Amendment prohibits same-sex marriage, it doesn’t appear to prohibit civil unions. It just prohibits a state court from finding a constitutional right to same-sex civil unions. Not a great thing, but nice to know this could have been worse. I guess.

[6] It looks like the proponents of Prohibition have learned from the experience in Ohio and elsewhere with overbroad amendments that limit rights of unmarried hetero couples. This actually is a bit of artful drafting, limiting the reach to defining marriage and preventing courts from finding a right to “the incidents of marriage.”

I regret ending this on a happy (for the amendment) note, but that’s how the thing plays out. Aside from the question of whether gay marriage is something to be protected from, this amendment is a clunky, precedent-busting way to do it. Of course, none of this is any more than kabuki for wingnutonia anyway. But as long as we are going to pretend this is a serious proposal, let’s pay attention to what it actually says.