Family Attorney

The Proposed Amendment; But With These Words, Can I Thee Quasi-Wed?

As the debate over amending the Constitution to block same-sex marriage heats up, a few legal scholars are arguing that the wording of the one amendment to be introduced in Congress so far is too ambiguous to accomplish what the president and its sponsors say they intend.

In calling on Congress to pass an amendment for approval by the states, President Bush made it clear that he wanted an amendment that would block recognition of same-sex marriages but allow individual state legislatures to recognize quasi-marital same-sex civil unions or domestic partnerships.

‘’The amendment should fully protect marriage, while leaving the state legislatures free to make their own choices in defining legal arrangements other than marriage,'’ Mr. Bush said.

Determining whether the text of the proposed amendment would accomplish that, however, can require a close reading, to say the least. The amendment reads: ‘’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 Alliance for Marriage, which oversaw the drafting of the text, and the Congressional sponsors say they chose to say no law ‘’shall be construed to require'’ to block courts from requiring that states or the federal government recognize marriages between people of the same sex. The amendment’s supporters also say that their text would still allow state legislatures to recognize quasi-marital same-sex civil unions or domestic partnerships, following the example of Vermont.

But not everyone shares that view. Some conservative scholars who oppose gay unions and some gay scholars who oppose the amendment are arguing that it might effectively block any marital benefits for same-sex couples, no matter what name is used.

A handful of conservatives argue that the sentence defining marriage as heterosexual should preclude any provision of marital benefits to same-sex couples, no matter what the name. A few gay legal advocates contend that future courts might interpret the amendment to block enforcement of any laws conferring benefits on same-sex couples.

‘’Constitutions are interpreted over time,'’ said Evan Wolfson, executive director of Freedom to Marry, a group opposed to the amendment. ‘’You don’t write a gamble like that into the Constitution.'’

Robert H. Bork, the conservative former judge and former Supreme Court nominee and a leading drafter of the amendment, called that argument ‘’preposterous.'’ He said that the text clearly restricted only courts, not legislatures. What is more, Mr. Bork said, the public debate over the amendment would determine how any court interpreted it. If voters approving the amendment believed it meant one thing, courts would be hard pressed to say it meant another.

Matt Daniels, a lawyer who founded the Alliance for Marriage and who is another drafter of the amendment, said the semantic debate was beside the point. ‘’We, the group that drafted the text and introduced it into the House and Senate,'’ Mr. Daniels said, ‘’are fully open to minor changes to the wording to make it clear, explicit and unambiguous.'’

Source : query.nytimes.com

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