Three Years of Hell to Become the Devil: Legal Incidents of Marriage

The proposed 'Musgrove Amendment':

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.

Andrew Sullivan and Eugene Volokh disagree with The New York Times on whether the Musgrove text for a Federal Marriage Amendment would outlaw civil unions. While I'm probably out of my league taking on Prof. Volokh, in this case I think he's letting his natural inclinations towards acceptance of gay marriage get the best of him, and he's neglecting the role of legislative creativity. The amendment does just what it's supposed to: stop judicial activism while leaving legislatures free to do as they will. Why?

Prof. Volokh's objection arises because he thinks that it would be impossible to make a valid civil union without it having the 'legal incidences of marriage.' He explains:

A gay couple enters into such a union. One partner, who works for the state, goes to his human relations director and says "Please add my partner to the insurance policy." "Nope," says the director; "I only add married people to the policy, not you newfangled gay civil unioned types." "But wait," says the employee; "you're required by state law to treat us just like a married couple." "Not so," says the director; "the Federal Marriage Amendment specifically says that no 'state . . . law[] shall be construed to require that marital status or the legal incidents thereof be conferred upon unmarried couples or groups.' You're telling me that I'm required to confer the legal incidents of marriage -- here, addition to the insurance plan that my department reserves only for married people -- on you, even though you're an unmarried couple. But the U.S. Constitution says that I cannot be so required."

...Then the employee goes to court to demand the benefit. "Sorry," the judge says. "The Federal Amendment bars me from construing the state law to require that this benefit be conferred on you. Yes, I know that the statute says exactly that. But the FMA doesn't allow to construe the statute that way, even if that's the statute's clear meaning. You'd be entitled to get the benefit under the statute, but the FMA trumps the statute.

So far, so good, but both Volokh and Ramesh Ponnuru, to whom he's responding, underestimate the language. First, let's admit that if we've got a Supreme Court or a state court who are willing to look at legislative history, Volokh's worries are unfounded--as Ponnuru points out, there's enough legislative history there that a sympathetic bench can do what it wants. But even suppose we've got dozens of genetically-cloned Scalias in this state, I can't see why a creative legislature could not rewrite its marriage code to get around Volokh's difficulties. While the final output would be more complicated, the gist of the regulation would run:

This state recognizes civil unions between any two individuals, regardless of sex.
The legal incidences of such civil unions are (bereavement leave, adoption rights, yada yada yada.)
All individuals who have been married in the state of X shall also be joined in such civil unions, and shall enjoy the rights and privileges listed in 2.
All individuals who are married shall (insert laundry list of rights which you wish to give only married couples, but keep from civil unions).

Why does this matter? Because in the case Volokh gives, the court is no longer construing a legal incidence of marriage upon a civil union. Rather, they are construing an incidence of a civil union upon a married couple, something which is not forbidden even by the plain language of the text. Yes, it involves a fair amount of legislative gruntwork, and I don't pretend that the 'legislation' above would be sufficient, but it's illustrative of structure. After all, there's nothing that says a state must recognize marriage as a legal state at all.

Note, however, that this only works one way. A legislature can rewrite its marriage code such that there's no construing going on in the one direction that such construction is forbidden: from civil union to legal marriage. But a judge, who can only construe in one direction if civil unions don't already exist, is quite nicely stopped from interfering.

Now, I may be wrong, and there may be some way that the simple legislation I've outlined above would fall afoul of case law. But there's nothing in the Musgrove Amendment that seems too difficult for a determined legislator to get his hands around. Of course, the fact that it's so appealing may be because it plays to my personal prejudices: get rid of legal marriage altogether and just adopt universal civil unions.

In any event, Volokh writes: "When you're deciding whether to support a proposed amendment, I think it's important to think about these ambiguities. Even a 50% or a 25% chance that an amendment will be interpreted to yield bad results might offer enough reason to oppose it." But we've already determined that the legislative history will support a sympathetic and 'activist' judge. Even a sympathetic yet textualist judge and a competent legislature can surmount the problem of language. Which means that the only judicial difficulty we'd have is a judge so rock-set against gay marriage that he cannot be persuaded that Musgrove allows it--one who is making conservative policy from the bench. But if that's the case, how is anyone worse off than before the FMA passes?

Comments

If there is even a slight possibility that the amendment could be misconstrued, then why not add a sentence making it clear that this amendment does not prevent states from enacting civil union laws? The only downside would be to alienate those who believe that the current wording bans states from so doing. But if that is the case, then there is a serious misunderstanding about what the amendment does, which needs to be cleared up. Alternatively, why not eliminate the words "state or" from the amendment? If the concern is about federalism, leaving state courts to interpret existing state laws would appear to respect federalism principles more than the current language of the FMA. If an "activist" court interprets an existing state law to encompass civil unions, then the legislature can simply override the law via a simple majority if they disagree.

Posted by: Joe D. | February 11, 2004 9:56 AM

You demonstrate at least a plausible, if rather tortured & convoluted, means by which the FMA might, in some possible world, be construed to maybe grant states the ability to create civil unions. i think volokh's & other group's criticisms of the amendment are very valid, and i believe the FMA's ambiguity may well have been expressly designed for this purpose (appear compromise, but be extreme). in any event, #4 on your list of how a state could accomplish its civil-union acrobatics troubles me: 4. All individuals who are married shall (insert laundry list of rights which you wish to give only married couples, but keep from civil unions). obviously, with a passed FMA, such discrimination [X,Y&Z rights are only available to X class of citizens (m+f) not to Y (m+m, f+f)] would be "constitutional," as the new amendment would override previous amendments which guarantee equal protection. but to me, guarantees of equal protection & the like are what make America America. i think the FMA is a tragedy and fundamentally anti-american, in the sense of being against all that is good & great about what this country stands for. i also want to toss this argument out there--some folks say allowing gay marriage shoves us down a slippery slope--bigamy & polygamy, hooray! to some extent, i don't think that's necessarily a bad thing--why shouldn't i be able to extend bereavement benefits or what have you to both of my loving wives?--but i think that slope needn't be all that slippery. discriminating against numerical-pairs rather than gendered-pairing is a lot more defensible & rational. after all, we have centuries of common law pertaining to inheritance and divorce and how property is split among 2. anyhow, that's a rough thought. i also want to say i really appreciate your impressively thoughtful and principled argumentation, even though i disagree.

Posted by: Toluca Jim/Visible Hand | February 11, 2004 12:16 PM

Toluca Jim: Thank you, first, for the compliment. ;) I'm not sure that I agree that the system above is particularly 'tortured.' Rather, it demonstrates the kind of creative legislating that's needed in order to start separating what we want from civil marriage (which would be covered by civil unions) and religious marriage. It's the kind of things legislatures should be considering. Besides, adopting civil unions involves a fair amount of tinkering with your code anyway--I don't think this is much more 'tortured' than the process will already involve. It's also worth noting that I agree with you on most of your substantive points (as I have often said, I'm not against same-sex marriage per se anyway), but I think you're overly-worried about clause 4. First of all, I only included it because it's an incidental advantage of the structure--it doesn't have to exist, but could be added in by law. Secondly, many of the 'incidents' you could put in that area might be relatively common-sense and unobjectionable. For instance, Columbia University has a chapel, which is at present used for marriages. (Not like I have the money to use it if I had the inclination to get married, but that's another topic.) Clause 4 would nicely cover any code needed to ensure that those getting religiously married could use the chapel, but not those getting civil unions. In other words, we're allies in thinking that most of what you consider objectionable is objectionable--and I wouldn't campaign to see anything put into clause 4, except perhaps the rules about chapels and such I mention above. But I think it should be within the state's power to do so--even if they shouldn't.

Posted by: Anthony Rickey | February 11, 2004 1:01 PM

Joe: The reason for adding the 'state or,' and in fact the entire seemingly 'overly harsh' construction, comes from the fact that everyone from Volokh on is making primarily textualist arguments for why the language is bad. However, as much as Scalia seems rampant at the moment, he doesn't actually win most of the cases he argues from a textualist perspective. Thus, those who propose the amendment are eager to make certain that the amendment cannot be 'interpreted' so as to make it meaningless. Those writing the amendment know they're doing it for a primarily hostile bench. If there was an expectation that the Musgrove Amendment would be interpreted in good faith, it could probably be textually 'looser.'

Posted by: Anthony Rickey | February 11, 2004 1:15 PM

Ok, so "everyone from Volokh on is making primarily textualist arguments for why the language is bad." i think the language really is bad, and your argument that you think they know this and wrote it "badly"/inelegantly b/c of a "primarily hostile bench" suggests you might agree. so now i must impute to the motives of the far right (caveat--not saying you or necessarily all or most supporters are) that they really do feel civil unions should be banned and that they are merely "eager to make certain that the amendment cannot be 'interpreted' so as to make it meaningless." yikes. anyway, " 'The cardinal principle of statutory construction is to save and not to destroy.' National Labor Relations Board v. Jones & Laughlin Steel Corp., 301 U.S. 1, 30. It is our duty 'to give effect, if possible, to every clause and word of a statute,' Inhabitants of Montclair Tp. v. Ramsdell, 107 U.S. 147, 152, rather than to enasculate an entire section." (United States v. Menasche, 348 U.S. 528, 538-9 (1955). Surely this is doubly so for an Amendment to the Constitution! You'd have to be insane to argue half the country vigorously fought for a meaningless amendment. the language is bad, and fairly clearly so, and that's a major problem. it should be fixed, if the true intent is to permit states to grant civil unions. there is also a difference to making textualist arguments (such as scalia is and as you note, failing) about decades old phrases and making textualist arguments about recently enacted Con. amendments. i also understand now what you were alluding to in your point 4, and i agree: clearly churches/religions should not be forced to accept practices contra their faith. but i guess i'm less worried about that happening, and more worried about ending the discrimination toward homosexuals and seeing them finally enjoy the many rights & benefits of marriage currently enjoyed only by heteros. two real & valid worries, & simply a differing calculus of where the greater danger/wrong lies. but despite the highly principled nature of how you arrived at your position, i fear few others who share it/support FMA are nearly as principled. and i hope, if/when the FMA should ever seriously be considered/on a ballot, that's something you'll weigh.

Posted by: Toluca Jim/Visible Hand | February 11, 2004 2:02 PM

You are never out of your league in taking on anyone. Ever. :)

Posted by: Balasubramani | February 11, 2004 4:49 PM

I would think that the following form of Marriage Amendment would be passable: just modify State reciprocity so that only man/woman marriages need to recognized by default, and that any other form was up to each State to decide to allow or recognize. Or is that just too sensible?

Posted by: David Mercer | February 11, 2004 6:04 PM

Toluca Jim: I don't think you can impute that motive at all. Assume that the primary motive of those supporting the bill is to make sure that marriage remains a single-sex institution. The secondary concern is to make certain that legislatures can adopt civil unions if they so choose. What you're implying is once should not accept a risk to a secondary concern if it improves your chances of successful implementation of the primary concern. I hope you won't take this the wrong way if I say that you can assert this because you don't value the primary concern very much at all. ;-) Now, you make come valid points on construction above, with the exception of the fact that rulings like Lawrence v. Texas cause the drafters of the FMA to fear that whatever the court said won't match what it will do. Thus, textual bonds must be tighter than might otherwise be necessary due to fears that the courts (and the Court) will make every effort to circumvent the text. Paranoid? Perhaps. But such is the consequence of 'activist' judges if they're being opposed by amendment. The trouble is that it would be difficult to torture the language of the Musgrove Amendment in such a way that states explicitly could grant civil unions to same sex couples, without simultaneously leaving room open for an aggressive court to require that a legislature must adopt them under some Equal Protection argument. If you'd care to put forward language that doesn't weaken the primary purpose, I'm all ears. Heck we can send it to some House staffers feeling they need promotion opportunities. :) Otherwise, the arguments that you, Sullivan, and Volokh propose assume that leaving open a legislature's option for a civil union is more important than what the FMA's backers consider the primary focus of the bill. The trouble is pure political calculus: so long as most of you are actually foresquare against keeping homosexuals from marrying, there's little reason for the drafters of the bill to compromise about details like civil unions to meet your concerns. You can 'impute' what you like, but it's pure assumption: it may be that backers of the FMA don't so much actually want to eliminate civil unions, as they don't care if they do if that's what it takes to achieve the primary objective. Me, I don't worry much about their motives. I've put forward a method for a state to enact civil unions, and I'm fairly convinced it would work. I'm a 1L. Now, if someone with more experience wants to show me where I'm wrong, fine, but until then, I'm confident that our state legislatures can come to the same 'back of the cocktail napkin' conclusion about how to get around Musgrove if they want to do so.

Posted by: Anthony Rickey | February 11, 2004 6:09 PM

Let's say the Musgrove Amendment passes, then a state amends its constitution to specifically allow gay marriages. What effect? Does "Marriage in the United States shall . . ." mean only the federal definition of marriage, or does it encompass state definitions. If it means "both national and state" governments, then the state's amendment would be unconstitution due to the supremacy clause. If it allows state gay marriage, then what would happen in the state's citizens (say by referendum) passed the amendment, but the legislature refused to pass the necessary statutes. The problem with the second sentence of the Musgrove Amendment is that the state judiciary could not force the legislature act (even if the people passed an amendment specifically saying gay marriage is ok) because this amendment would prevent the state court from construing the text "gay marriages are okay" to mean that gay marriages are okay. All in all, I wouldn't really worry too much about the text of the Amendment; just look how the Supreme Court has butchered the 11th Amendment.

Posted by: asdf | February 11, 2004 7:35 PM

ASDF: The question is about what states could do to allow civil unions. Even if a state wanted to amend its constitution to allow homosexual marriages, it couldn't do so under Musgrove--that's not in doubt. Admittedly, there's an alternative to the FMA, which would simply prevent any state from having to recognize homosexual marriages made by any other state. According to what many homosexual rights activists (including Chris from En Banc) say right now, this is the current state of play. However, such an amendment is politically impossible, because those who most strongly desire it don't really desire it. Basically, you can form a coalition of those who don't like gay marriage at all (social conservatives) and those who don't like gay marriage judicially imposed, and pass the FMA. Even then it's a close run thing. But suppose you wanted to pass a 'federalist' amendment, that allows any state to sanctify gay marriage, but prevent other states from having to accept those marriages as valid. (In other words, make the federal DOMA an amendment.) This would appease the federalists who support the FMA, but wouldn't gain the support of those who don't like gay marriage full stop. It also wouldn't attract the support of homosexual rights activists, who in general only like it to the extent that it weakens the case for an FMA, but aren't generally 'federalists' in any sense of the term. In other words, it's a dead letter.

Posted by: A. Rickey | February 11, 2004 8:10 PM

Oops, one quick correction from my earlier post. This line: so now i must impute to the motives of the far right (caveat--not saying you or necessarily all or most supporters are) that they really do feel civil unions should be banned and that they are merely "eager to make certain that the amendment cannot be 'interpreted' so as to make it meaningless." should have read: so now i must impute to the motives of the far right (caveat--not saying you or necessarily all or most supporters are) that they really do feel civil unions should NOT be banned and that they are merely "eager to make certain that the amendment cannot be 'interpreted' so as to make it meaningless." that is, i'm not nearly that charitable with the far right. some/many/most FMA supporters/anti-gay marriage types want this because they disapprove of homosexuality, want to discriminate against them, and are bigots. more shortly...

Posted by: Toluca Jim/Visible Hand | February 11, 2004 9:29 PM

I think my typo may have caused some misunderstanding. And now I must admit a bit of misunderstanding/foggy knowledge of my own. Re primary/secondary concerns. My primary concern is righting the discriminatory & second-class citizenship of homosexuals. and i believe a very reasonable and valid case can be made that whatever basket of rights governments (state/federal) grant to married M/F couples MUST BE extended to M/M & F/F couples. Not doing so is discriminatory and violates equal protection. I don't understand how judges (in my view, logically & correctly) forcing states/fed govt to grant homosexuals access to the institution of marriage & its attendant rights/privileges is wrong. the current state of affairs, in my view, is counter to the constitution, the spirit of america & everything truly american. judges are imposing a just & constitutional order on an unwilling & unconstitutional america, just as they did in the 50s & 60s with segregation/interracial marriages. I initially accepted your point about the Columbia chapel. However, I thought more about it and i can't think of anything that gay marriage actually threatens or is "bad" about it--nothing in the process (based on my view [which i feel is a valid & reasonable one] of the constitution), and nothing in the outcome. That is, i don't see at all how the advent of gay marriages would negatively impact hetero religious marriages or religion. churches/religious groups already can't be forced to be wholly non-discriminatory like the government. i guess i'm a bit foggy. i thought basically all that's happening is that MA is forcing the state to recognize civil marriages between homosexuals and grant them all the attendant rights. no churches/religions are being forced to marry gay people, right? what's wrong with this? why shouldn't every state be likewise? why should some states get decide to continue (again, what i view as) unconstitutional discrimination (well, i guess that's easy--you must not think it's unconstitutional)? a "federalist" solution letting each state decide is like a Missouri Compromise or Jim Crow. It's wrong, and it's wrong everywhere. if MA is somehow forcing religious homosexual marriage on america, sure, that's whack. religions should basically be able to do their own thing (you know, aside from human sacrifice type stuff). but i'm pretty sure that's not what the MA decision is all about. i guess i thought the MA decision was just forcing the state of MA to permit gay civil marriage & all its bells & whistles. maybe i'm wrong tho, and if so i really apologize, because I'd've been debating ill-informed.

Posted by: Toluca Jim/Visible Hand | February 11, 2004 10:03 PM

A, From a sheer textualist position, I still think that the first sentence of the proposed amendment could be interpreted as to only prohibit federal recognition of gay marriage. Cf Amendment XI with Alden v. Maine--basically the Supreme Court changed 200 plus years of understanding and held in Alden that "The Judicial power of the United States" really meant "The Judicial power of the United States and the states." A plausible argument can still of course be made--as it was for 200 years--that "The Judicial power of the United States" language left the states free to entertain such suits. It all could be avoided by writing: "Marriage in the United States and in any state shall . . ."

Posted by: asdf | February 11, 2004 10:44 PM

Toluca: Right.... that was a typo. Well, now my response looks silly. ;-) Anyway, what I was trying to point out isn't whether your opinion is substantially wrong (if you don't mind gay marriage, you don't mind gay marriage). In which case, opposing the FMA in all its forms is perfectly appropriate. However, it also means that your opinion isn't really a part of any compromise solution. Many people don't like the idea of the decision coming from the judiciary. Many people don't like the idea of homosexual marriage because they consider religious and and civil marriage not to be wholly separate, but that the civil institution sort of 'piggybacks' on the religious one. And some people are, as you point out, just bigots. Now, if you could find a common cause with one or more sets of those, campaign with them, and work to address their concerns, not your own, then you'd have the making of a coalition. But if, like you and Volokh, you object to the language of the amendment because it might cause problems for civil marriage, but any proposed change to mollify this concern would weaken the primary aim of the amendment (stopping judicial imposition of homosexual marriage), well, it's no wonder that the FMA won't get changed that way. Purely practical politics. ;-) Asdf: Wow. Just looked over Alden. You're right, that's actually a big chink in the armor.

Posted by: Anthony Rickey | February 12, 2004 9:27 AM

Thw way I see it, the problem lies in situations similar to those that arose in the sixties. You don't seem to be seeing the possible plaintiffs. Anti-discrimination laws in the sixties forced the restaurant owner to serve blacks. Presume an employer does *not* want to grant bereavement leave to his gay employees. I think, under the FMA, he could go to court and hold that those statutes you listed above are unconstitutional, and may not compel him. "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."

Posted by: bob mcmanus | February 12, 2004 11:15 AM

Bob: I'd be a pretty poor law student, and on the way to becoming a pretty poor lawyer, if I wasn't 'seeing the possible plaintiffs.' Of course, you might think that, I couldn't possibly comment. The simple solution, if the state wants bereavement leave granted to same-sex couples, is to put it into clause 2 of the structure above, making it a legal incident not of marriage but of civil union. If the state didn't think bereavement leave should be mandatory for same-sex couples, they could put it in clause 4. Either way, the state legislature can't be forced to do either by any judiciary.

Posted by: A. Rickey | February 15, 2004 3:06 PM

The problem you're missing will come up in Fed Courts. It's called "characterization," and it roughly boils down to this: Just because a state legislature says something isn't legally a contract, doesn't mean that the state can impair the obligations of it. The federal courts will substitute their own judgment of what the legal relationship is, at least for constitutional purposes, irrespective of its meaning for state law purposes (where state courts traditionally have the last word). This could result in a legal relationship being a "contract" for Impairment Clause purposes, but not being a contract for, say, probate purposes. So here, whatever the legislature chooses to do to get around the "marriage" tag, a federal court, if consistent with the last ... I think it's fifty years of precedent, will notice 1) it looks like marriage; 2) it smells like marriage; 3) it quacks like marriage. And the "legal incidents" coming along with civil unions are unconstitutional. As for how you'd make an amendment ensuring that some judge doesn't require under Equal Protection grounds or the like that civil unions be imposed against the deliberate inaction of the legislature: "Nothing in this Constitution shall be construed to require the legal incidents of marriage to be conferred on &c. &c." Easy. The problem with the Musgrave Amendment's text---aside from the _remarkable_ intrusion into state authority; not even the Fourteenth Amendment goes so far---is that it prohibits the states from legislating as they want. And it is---of course---no answer to point to state constitutions as potential sources for state courts. State constitutions are, as ever, part of the state law and part of the state's domain. And in most states they're much easier to amend than the federal const'n. In fact, probably in all of them. (I think in Texas all legislation may actually go into the constitution, but I very well could be wrong.) If, as in the relatively liberal states of New Jersey and Massachusetts, states wish to enact greater personal freedoms than the federal constititution requires, allowing them to do so is the very point of federalism. (NJ is the most notable example in the property law context, as you'll eventually discover.)

Posted by: Tony the Pony | February 16, 2004 11:06 PM

TtP: Having looked into 'characterization' now (annoyingly won't do me any good for a while) I can answer that. First, marriage is traditionally a domain of the state, and there's nothing within American tradition that says that a state must recognize it. So I don't think that a court is likely to treat it as they do contracts anyway. Secondly, there's a question of what they'd strike down. A suitably craft legislature, wishing to make certain that it's civil union clauses would pass muster, would simply do what they could to make various bits of the law non-severable. So, for instance, the court would be able to rule that the new civil unions are unconstitutional. However, so long as all marriages in that state get their legal incidents through the civil unions, a court striking down the civil union would also be striking down most of the benefits of marriage in that state. Most would be loathe to do so. Finally, all of the above assumes that there's a U.S. Supreme Court constituted in the near future (I'm sufficient with looking at problems in terms of my lifetime) who are both Scalia-level textualists (actually, I think a textualist would be satisfied with my approach--it's more Rhenquists that might be a problem) and completely antithetical to gay civil unions. Simply put, I can't see that happening. If the various benches were so dead-set against gay marriage, much less civil unions, we'd not be having this conversation.

Posted by: A. Rickey | February 29, 2004 1:40 AM