Andrew Sullivan, usually a pretty perceptive guy, has this to say about the proposed Federal Marriage Act:
The amendment wouldn't simply ban equality in civil marriage, a right that is now guaranteed to murderers, child abusers, dead-beat dads, multiple divorcees and foreigners - but not to gay citizens. It would also make it unconstitutional for a state or federal law to give any benefits whatsoever to gay couples. Where do I glean that? From the words "or the legal incidents thereof."
I'm afraid he reads too much into the proposal. The wording is:
"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."
As I read it, this would obviate any claim that any constitutional or statutory provision implicitly requires that marital status or its legal incidents be extended to gay couples, but it would not preclude any state from explicitly extending that coverage. Any state is free now to create new civil rights in this area, if it sees fit to do so, and the FMA would not do anything to prevent it from doing so.
A statute that expressly confers the legal incidents of marriage on gays needs no construction to get to that result, and thus the "shall [not] be construed to require" language would not stand in the way.
7:18:40 PM 
|
