Marriage Amendment Is ‘An Unprecedented Transfer of Power…To Federal Judges’

Yesterday, President Bush argued that the Federal Marriage Amendment, under consideration by the Senate this week, would take the issue of marriage away from the courts and to the people:

A constitutional amendment will put a decision that is critical to American families and American society in the hands of the American people, which is exactly where it belongs. Democracy, not court orders, should decide the future of marriage in America.

Actually, the opposite is true. Georgetown Law Professor Michael Siedman explained today at an event at the Center for American Progress:

If enacted, their handiwork [the FMA] is bound to produce outcomes that no one could have wanted or intended and an unprecedented transfer of power over domestic relations to federal judges…Clearly, the framers of the amendment meant to distinguish between “marriage” itself and its “legal incidents.” This much is obvious because the first sentence…defines only “marriage,” while the second sentence refers to both “marriage” and its “legal incidents.”…

Apparently, the framers have in mind a distinction between core legal attributes, which make up “marriage,” and an unspecified list of peripheral attributes which make up its “legal incidents.” Because the amendment is entirely silent about what is core and what is periphery, it gives federal judges unchecked power to place various aspects of marriage in one category or another.

Let’s consider a hypothetical. Suppose that a state passes a law creating “civil unions” with almost all the benefits of marriage. Does this count as a “marriage” or is it only the “legal incidents of marriage?” Which category it falls into determines whether civil unions will be constitutional. That decision will now be turned over to federal judges for the entire country. Short of another constitutional amendment, there is nothing the state or federal government will be able to do about it.

Full Text of the Federal Marriage Amendment:

Marriage in the United States shall consist only of the union of a man and a woman. Neither this Constitution, nor the constitution of any State, shall be construed to require that marriage or the legal incidents thereof be conferred upon any union other than the union of a man and a woman