On Wed, 25 Feb 2004 19:09:45 GMT, Dan Evans <dan@evans-legal.com> wrote:
I have read W's announcement of support of a constitutional amendment
to "define and protect" marriage, but I still don't understand the
purpose or legal effect of the amendment.
Will it:
1. Prevent federal courts from holding that the federal "Defense of
Marriage Act" is unconstitutional and a denial of equal protection, so
that federal courts cannot order that homosexuals must be allowed to
marry on the same terms as heterosexuals?
Depending on the wording, it would override any preexisting constitutional
limitations including the fifth and fourteenth amendments. If worded
expansively, it could allow states to criminalize homosexual behavior
again. Even if narrowly worded, the Supreme Court could find that the
new amendment dramatically changes the implications of the 14th Amendment
and thus supports going back to Georgia v Bowers.
2. Carry out #1 and also prevent state courts from holding that their
state constitutions require that homosexuals be allowed to marry on
the same terms as heterosexuals?
Yes, but the propose seems to be limited to stopping the use of the
word marriage to whatever the state allows gays to do. The point is
to prevent nationwide recognition of marriages between gays. States
that don't have "domestic unions" won't have to provide any rights
to those created in other states.
3. Carry out #1 and #2 and also prohibit state legislatures from
redefining "marriage" to include gay marriages, even though the effect
of the legislation will be limited to property rights and employment
benefits within that state, and state taxes only?
Would violate the consitution if amended as Bush wants.
4. Carry out #1, #2, and #3, and also prohibit state legislatures
from creating "domestic partnerships" that will be treated in a manner
similar (or identical) to marriages?
They would be identical except
1) No federal recognition or benefits allowed
2) No mandatory interstate recognition
3) Use of the word "marriage" would be reserved for heterosexual couples
so that the sanctity relationships would not be "under attack" whatever the
heck that means. (Just typing that makes me feel slimey)
Goal #1 I have some sympathy for, because I don't believe that federal
courts should be making those kinds of decisions. But I don't think
any federal court has made such a decision, so no constitutional
amendment is needed.
Exactly so.
I might also have some sympathy for Goal #2 for similar reasons, but
it makes no sense legally, because the federal constitution can't tell
(or shouldn't tell) state courts how to interpret state constitutions.
I disagree. States cannot interpret their constitutions in ways that deprive
citizens of their rights under the federal constitution. Historically
state governments have attempted to do exactly that. As long as states do
repect federally granted rights, then yes states can interpret their
constitutions as they wish. Some of the history behind the eleventh
amendment revolves around states trying to avoid paying back legally
incurred debts to citizens which arose during the civil war.
In any case, a new amendment narrowly tailored to one issue really doesn't
solve what you see as a problem.
Goal #3 makes no sense without Goal #4, because without Goal #4 the
constitutional amendment becomes a meaningless game of semantics. If
you define "marriage" but allow states to define "domestic
partnerships" will all of the rights of marriage, you have
accomplished nothing that has any legal consequences.
I think you are mistaken here. There would be legal consequences.
And Goal #4 is makes no sense as a matter of constitutional law. If
100% of the people (or even 51% of the people) in a state want
"domestic partnerships" to have the same employment benefits (or tax
benefits) as married couples, why should the people of the other 49
states be able to stop them? This is not a situation in which the
constitution might be protected a minority from opression by a
majority. It is a case in which the constitution will be preventing
the majority from bestowing a benefit upon a minority.
Goal 4 is not a goal. Bush has said that he wants to leave the issue
of "domestic partnerships" to the states.
Isaac
