Normally when Andrew Sullivan is beating up the New York Times, my sympathies are entirely with him. And like other conservatives, I am inclined to be suspicious of the newspaper’s new “conservative beat.” But Sullivan’s criticism of David Kirkpatrick–the Times reporter on that beat–is wrongheaded.
The subject of the report was, yes, the Federal Marriage Amendment. Sullivan faults Kirkpatrick for saying that the amendment, as sponsored by Colorado Republican representative Marilyn Musgrave, would ban gay marriage but allow civil unions. Kirkpatrick has, for Sullivan, displayed “ignorance” and “swallowed [a] religious right lie.” It “simply isn’t true” that the amendment allows civil unions. The Musgrave amendment, Sullivan writes, was the most extreme possible amendment available. Kirkpatrick has portrayed it as a “moderate compromise.”
There are some intricacies that did not make their way into the Times story. But Kirkpatrick basically got the story right.
I don’t think Sullivan accurately characterizes the possible constitutional amendments that social conservatives had discussed, and I’m not sure his current descriptions of those options are compatible with his previous ones. But the crux of the matter is this question: Does the Musgrave FMA prohibit legislatures from creating civil unions for homosexuals?
The text of the amendment, which Sullivan quotes correctly and in full, reads as follows: “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.” Sullivan thinks that the bit about “legal incidents” would block civil unions and domestic partnerships.
It is true that there are some law professors, notably libertarian blogger Eugene Volokh, who agree with him on this. But it is also true that almost everyone who supports the amendment believes that it allows civil unions. There are two exceptions. Robert P. George of Princeton University and Gerard Bradley of Notre Dame Law School are proponents of the amendment who believe that it bans some kinds of civil unions. But they don’t believe that this ban has anything to do with the “legal incidents” sentence; they think it is implicit in the first sentence, about “marriage.” And they are in a small minority. Everyone on Capitol Hill who is for this amendment is for it on the theory that it does not touch legislatively enacted civil unions. When the amendment is debated, the legislative history will clearly indicate that legislatures will retain the power to create civil unions–and a clarification may be added to make it clear that the Bradley/George interpretation of the first sentence does not hold.
As Kirkpatrick reported, some social conservatives, such as Michael Farris, are objecting to the amendment precisely because they want to ban civil unions and don’t think the Musgrave amendment does. Farris is not pretending to object to the amendment because he’s part of some elaborate strategy of deception. He means what he says. The Republicans really have chosen a course that is too moderate for some social conservatives.
In a moment, I will go into the reasons for thinking that the “legal incidents” language does not ban civil unions. I am quite convinced that I’m right about that point. But even if I’m wrong, it is neither a “lie” nor “ignorant” for Kirkpatrick and others to follow the prevailing interpretation.
The argument for Sullivan’s reading would go something like this (I’m drawing on previous arguments that he and Volokh have made): Say a legislature has given a benefit traditionally associated with marriage to gay couples. Judges would be unable to read the statute to confer the benefit. And not just judges–as Sullivan notes, the amendment uses the word “construe,” not the phrase “judicially construe.” The executive branch, too, would be unable to act on the law.
The plausibility of this scenario turns on the meaning of the phrase “the legal incidents of marriage.” So, for example, the legislature says that a state worker who is in a civil union is entitled to bereavement leave on the death of his partner. If he has to go to court to vindicate his right, what will the court do? If the court turns to a legal treatise that says that bereavement leave is traditionally a legal incident of marriage, will it have to say, “Sorry, the law cannot be construed to give gay couples this benefit”?
No. Here’s the explanation that Bradley and George give on this point in an unpublished memo:
The treatises do list common marital incidents, with growing disagreement about what is still on this shrinking list. But the treatises and leading cases also list the common property crimes, the duties of a corporate trustee, an estate executor, as well as the jobs of surety, a third-party contractual beneficiary, just as they list the typical marital incidents. But: there is no crime against property in, say, Indiana unless it is listed in the current Indiana Penal Code. Corporate trustees in Arkansas have those duties and only those duties which Arkansas law actually imposes. Any lawyer who submitted a brief to the New York Court of Appeals on suretyship citing only treatises and digests would be guilty of malpractice. . . .
Nothing is an incident of marriage unless extant state law makes it so. There are no “state-less” incidents of marriage. “Marital incidents” are not goods floating free of the positive law. They do not form a “brooding omnipresence in the sky.” State law makes this or that benefit a marital incident by, and only by, saying that it is. The state says that it is by saying, for example, that the beneficiary is one’s “lawful spouses” or “husband” or “wife,” or by saying that a particular privilege accrues to lawfully married couples. Where these words are used, there is a marital incident. Where these (or similar) words are used, [the amendment’s sentence about “legal incidents”] would prohibit courts from extending the benefit to unmarried couples or groups. Where some such formula is not used, there is no incident of marriage (emphases in original).
Therefore, a legislature can decide to make a benefit that was previously an incident of marriage and extend it to others. It could, for example, say that partners to a civil union have the same benefit. When it does such a thing, the benefit ceases to be an incident of marriage. The courts and government agencies are free, under the amendment, to give effect to such a law. What the amendment does prohibit is a court’s extension of a benefit that the legislature has reserved to married couples to other groups.
Now it is true, as I mentioned earlier, that Bradley and George think the amendment’s first sentence, the one about marriage, does achieve what Sullivan fears: a ban on some kinds of civil unions. They believe that if a court were interpreting an FMA, it would have to read “marriage” to refer not just to a word but to an institution, and certain forms of civil union would be too close to marriage to be allowed. They make an analogy: If a state is not permitted to have its own “navy,” it is not permitted to have a fleet of battleships that it calls an “armada.” Just so with marriage: A state would not be allowed to have marriages for same-sex partners that it called “marriages”–or “civil unions.”
As I said, their interpretation is not winning the day even now–before the issue of how to interpret the amendment is even close to coming before a court. The language could easily be changed to preclude their interpretation. Something like: “In the laws of the United States and of the states, the word ‘marriage’ will refer only to the union of a man and a woman.” Better yet, from my point of view, the amendment could be redrafted to focus exclusively on the question of the judicial role and leave legislative choices about gay marriage entirely open.
But none of this has anything to do with the “legal incidents of marriage.” And none of it justifies slamming either the reporting of David Kirkpatrick for the New York Times, or the honesty of social conservatives.