Dispatches from the Creation Wars

A Different Federal Marriage Amendment?

Eugene Volokh discusses Bush’s statement that he’s okay with civil unions and has a different version of the FMA than I had. The original Musgrave amendment that was rolled out with a good bit of fanfare said:

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.

This obviously banned civil unions as well as gay marriages. But the bill that Volokh cites is worded differently. That one says:

“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, shall be construed to require that marriage or the legal incidents thereof be conferred upon any union other than the union of a man and a woman.”

The distinction is that the second one would only mean that a court could not rule that a state constitution requires civil unions, but would not forbid state legislatures from enacting civil union legislation if they chose to. And that apparently is the wording as of July 2004, which is more recent than the wording I had. So apparently, the wording was changed at some point. Technically, then, Bush’s statement was not a reversal of his position with respect to the FMA.


  1. #1 Reed A. Cartwright
    October 26, 2004

    IMO, the second wording is much dumber and demonstrates a lack of civics education among our Republican politicians. Whatever lawyers decided on the language need to be disbarred. Constitutions are supreme law, and it is stupid to say that supreme law cannot cover X but normal law can. If the republicans are that afriad of judicial review, why don’t they just push for an amendment to eliminate it.

    If I were to draft the FMA, this is what I would have written.

    “Marriage in the United States shall consist only of the union of a man and a woman. Only a union of a man and a woman has the right to be called marriage and to the legal incidents thereof.”

    The use of the word “construe” has always bugged me. It is very stupid to use an amendment to change how the constitution is interpreteded when you can just change the constitution itself.

    Of course, “legal incidents thereof” is a fuzzy-ground to itself. There are all sorts of “unions” that have the some of the same legal incidents as marriage: buisness partnerships, parent-children, etc. Reactionary Republicans are seriously gunning for very bad law.

  2. #2 Mike A.
    October 26, 2004

    It was my understanding that the second wording of FMA did not replace the first. More than one version was circulating during the time leading up to the Congressional votes.

    May 2003 House version of FMA

    November 2003 Senate version
    (trailing colons are part of the web address)

    March 2004 Senate version

    July 2004 Senate version

    July 2004 House bill barring the state and federal courts from ruling on gay marriage

    The September 2004 House version of FMA

    One effect of this was that FMA supporters, by not distinguishing one version from another, could claim to be allowing and opposing civil unions at the same time.

  3. #3 Mike A.
    October 26, 2004

    In other words, the second wording is what appeared in the final votes, but the earlier wording was still being circulated and endorsed by some FMA supporters up until then.

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