On Thursday, I claimed that Andrew Sullivan had misunderstood the Federal Marriage Amendment. Eugene Volokh and he say that I’m the one who doesn’t get it.

All of us agree that the amendment would ban a state from adopting same-sex marriage—democratically or by judicial fiat.

I said that the amendment would not bar a state legislature from enacting civil unions, but only block any future replays of Vermont, in which a court essentially ordered a legislature to enact them. (Eugene and Andrew don’t bring this point up specifically, but I should have qualified that statement: It depends on the contours of the “civil unions” in question. The amendment would block democratically-adopted civil unions if those civil unions were marriages in all but name.)

Andrew and Eugene argue that the FMA would prohibit legislatures from creating any type of civil unions, recognizing domestic partnerships, or even making employers provide same-sex partners with the same benefits that go to married couples. I disagree.