News Intelligence Analysis
U. S. Senator Wayne Allard Re-Introduces Federal
Marriage Amendment Bill
An analysis of why the revised version still denies the legal incidents of marriage to gays
By Katherine Yurica
April 26, 2004
The Yurica Report learned that U.S. Senator Wayne Allard (R-Colorado) re-introduced his Federal Marriage Amendment (FMA) in the Senate on March 22, 2004.
"I have made some technical changes to fine-tune the language of the FMA," Senator Allard said. "The new language makes the intent of the legislation even clearer: to protect marriage in this country as the union between a man and a woman, and to reinforce the authority of state legislatures to determine benefits issues related to civil unions or domestic partnerships." The purpose of the changes introduced on Monday, according to Allard, is to "remove any ambiguity and make the original policy goals transparent."
The amendment now reads:
“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.”
Unfortunately, the revised version does not improve the amendment. According to Jack M. Balkin, Knight Professor of Constitutional Law and the First Amendment at Yale Law School, courts are still prevented from holding that a state constitution can be construed to require that the legal incidents of marriage be conferred on same sex couples. In other words, a state cannot pass a law granting equal protection or constitutional values to same sex couples. Balkin explained that the "legal incidents include a whole bundle of rights in family law, pension law, tort law, property law, and so on." The bottom line is that no judge, executive or administrative official would be allowed to construe a state constitution to allow the legal incidents of marriage--even if the constitution said all civil unions are entitled to all the legal incidents of marriage. This means that even if an employer granted such benefits, they would be unenforceable in a court of law. The amendment is still written to obscure its true intent. Balkin wrote that it's easy enough to write the amendment in a straight forward manner. His draft reads:
"Section 1. 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...shall be construed to require that marital status be conferred upon unmarried couples..."
"Section 2. Nothing in the first section of this Article shall be construed to prevent either Congress or the legislatures of the several states from providing any other benefits, rights, or privileges, or combinations thereof, to unmarried couples..."
There is a huge gap between what the text says and what Senator Allard and his supporters claim it says. The issue comes down to this statement by Michael Dorf: “[T]here is simply no good reason why the government should confer official recognition and financial benefits on straight couples, while refusing the same to gay and lesbian couples.” Therefore the amendment will unequivocally create two classes of citizens: those who can receive official recognition and financial benefits and those who are ultimately denied those benefits. It is immoral to create two classes of American citizens.
Katherine Yurica was educated at East Los Angeles College, the University of Southern California and the USC school of law. She worked as a consultant for Los Angeles County and as a news correspondent for Christianity Today plus as a freelance investigative reporter. She is the author of three books. She is also the publisher of the Yurica Report.
Send a letter
to the editor
about
this article
For Whom the Bell Tolls
Dominionists New Version
of
Marriage Amendment Fails Again
By Katherine Yurica
The Federal Marriage Amendment
Bill was
amended on March 22, 2004. The text of the
revised version is just as murky as the original.
Read about the problems that still exist. The
Yurica Report's analysis is here.
If you have not read For
Whom the Bell Tolls,
by Katherine Yurica read the complete revised
version now.
For all articles on the Marriage Amendment see:
Pending Dominionist Bills in Congress