More Legal Scholars Agree on Scope of FMA

Jacob Levy of the University of Chicago has weighed in on the question of whether the Federal Marriage Amendment (FMA) in the New Republic. He agrees entirely with the argument I made in my fisking of William Kristol and in my post on Bork and the bizarre framing process of the FMA. That argument is that, contrary to the repeated claims of FMA advocates, the wording does prohibit states from passing any sort of civil union legislation. Levy is in complete agreement on both the fact of this and the inference of hypocrisy:

As written, though, the FMA would make it impossible to create the type of civil unions FMA boosters like Ponnuru suggest they're open to. More broadly, it's unlikely that any amendment preventing courts from creating civil unions would make it possible for legislatures to do the same. Worse, not only would the FMA deny state legislatures the authority proponents claim it would leave intact; it would also constitute the kind of unprecedented assault on state autonomy conservatives reject in almost every other circumstance.>

Levy also notes a further problem that hadn't occured to me, making it an even greater incursion on the federalism that conservatives claim to support in every other circumstance:

There is another, subtler problem with the FMA's second sentence: It does not merely limit and constrain state laws. It dictates a rule about how state laws and state constitutions will be construed and interpreted by the state's own courts. That is an unprecedented intrusion into the autonomy of the states' legal systems. Instead of limiting state law with federal law, from the outside, it would distort state law from within...

But meddling for the first time in how states interpret their own statutes and constitutions isn't a marginal change. It's a change in the basic status of state constitutions and legal systems. That's because state constitutional provisions can mean something different from their federal counterparts, even when they use precisely the same wording. Among other things, state-level precedent and the different overall constitutional structure in whose light provisions must be interpreted allow state legal systems to develop in ways more protective of individual rights than the federal system. Guarantees of freedom of speech, freedom of association, the right to keep arms, privacy and property rights, and, yes, equal protection clauses can all be construed more expansively in a given state than they are at the federal level--a fact that matters dearly to conservative defenders of federalism. For those who care about federalism as an institution for protecting freedom--a description most conservatives would assent to--federal intervention in state constitutional development is a dangerous precedent, imperiling precisely these rights.

But none of this seems to matter to the anti-gay marriage crowd. As long as it achieves the desired result, they seem intent on overthrowing their entire stated legal theory. And Levy is left to the same conclusion I've been making here consistently:

The FMA was oddly written in an attempt to meet social conservative aims under cover of shoring up the separation of powers and respecting federalist principles--and while avoiding the appearance of extremism that would be created by banning civil unions altogether. The attempt to do all this simultaneously failed. We're left with an amendment that achieves social conservative aims by subverting both the separation of powers and federalism. In this case, a bad cause seems to have made for bad law.

P.S. Eugene Volokh agrees with us too.