An Interesting Paradox
Over at the Republic of T, Terrance has been chronicling battles in Wisconsin and Virginia over the interpretation of either Defense of Marriage amendments or alterations thereto. The argument is wearily familiar: that the text of the legislation is overbroad, and that it risks not only banning same-sex marriage and civil unions, but also private contractual arrangements regarding visitation, inheritance, etc. between same-sex couples.
The language in the Wisconsin amendment is typical:
Only a marriage between one man and one woman shall be valid or recognized as a marriage in this state. A legal status identical or substantially similar to that of marriage for unmarried individuals shall not be valid or recognized in this state.
Prof. Althouse commented here, and while she doesn't fully address the ambiguity, she explains in enough detail for my purposes the processes in which a court might interpret the text.
And yet the legal realist finds myself unable to fathom the argument. Opponents of these Defense of Marriage Amendments (or whatever the latest Virginia iteration is calling itself) claim that there is a significant risk that, should the measures be passed, a radical conservative judiciary is going to expansively read the provisions to enforce them to the utmost bounds of their meaning, knocking out not only privately-contracted civil unions (plausible) or state-sanctioned domestic partner benefits (possible), but also private contracts between homosexuals on the ownership of corporations. Why? If those states have judiciaries that will twist the text beyond the bounds of reason to restrict gay rights (so much so that they'd abrogate many contracts entered into by non-married heterosexuals), why did the voters of these states feel they needed DOMAs in the first place? Who are these justices just about to give progeny to Goodridge that yet would overenforce a ban on civil unions?
I wonder how effective these arguments will be in campaigning against DOMAs. Certainly there is a risk that moderate voters will see opponents bewailing the coming conservative judiciary to be at least partially crying wolf, isn't there?