The Corner

Sullivan’s Stumper

Andrew Sullivan asks me whether the FMA voids Vermont’s civil unions or would void Massachusetts’s civil unions if those are enacted. Those were (or will be) enacted by the legislature after a judicial edict. I’m afraid I can’t give a fully satisfying answer. The amendment is supposed to block recurrences of such judicial edicts–so you would not see other states following the same pattern. Whether the existing civil unions and civil-unions laws would be nullified is, I think, unanswerable based on FMA alone. It would depend on the applicable law regarding how to handle retrospective changes to the law. Supporters of FMA who agree with one another about every other detail of what its impact would be may well disagree on this question. Also, to confront an issue Sullivan does not raise, I am pretty sure that the FMA does not do anything to touch the question whether other states can or must recognize Vermont’s civil unions. There are some other things in his post to quibble with–does he really think state courts are going to have the last say on the interpretation of this amendment for very long?–but we’ll all have plenty to talk about in the days to come.

Ramesh Ponnuru is a senior editor for National Review, a columnist for Bloomberg Opinion, a visiting fellow at the American Enterprise Institute, and a senior fellow at the National Review Institute.

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