Re my post about the Defense of Marriage amendment to the Constitution, a couple of people pointed out that the proponents of the Amendment think it prevents states from having gay marriage, and point to the first sentence in the proposed amendment, “Marriage in the United States shall consist only of the union of a man and a woman.”I agree that many proponents, at least the ones I have heard–as well as opponents–seem to think the Amendment prevents states from having gay marriage.

Now the proposed amendment is certainly poorly drafted. No doubt it would be clarified before being ever seriously considered. To repeat, the version I found states:

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.

Now does the first sentence prevent a state from legislatively providing for gay marriage? I do not think so, for a few reasons.

First, if it did, why are the other sentences necessary? Why say that a state constitution or the federal Constitution shall not be construed to require gay marriage? After all, this amendment is to be in the Constitution itself, and if the first sentence prohibits all gay marriage, then of cousre the federal Constitution can’t be “construed” to require it; and it would not matter if a state constitution did, for it would be in conflict with the federal. Therefore, these other sentences would be superfluous. But by standard constitutional interpretative techniques we have to assume they are in there for a reason, this implies the first sentence does not automatically do anything like this. So it is kind of precatory, but has no effect on its own.

And consider this. Suppose this amendment is enacted. Now California enacts a civil union statute, that says that any two people co-habiting may sign up for a civil union, in which case they will inherit from each other “as if” they are married, can make decisions for each other, can bind each other in debts, have community property etc. Or, instead of saying “as if” they are married, the statute could simply list all the rights and obligations, and these could mirror those in force for married couples. This would not be unconstitutional, would it? It would not violate the amendment, would it?

I think it would clearly not.

Then gay couples start signing up for the civil union. Some of them will no doubt call themselves “married”, and have “marriage” ceremonies. Some of their friends, maybe even employers, will refer to civil-union-partners as “spouses.” Now this private use of langauge is not illegal, or unconstitutional, is it?

Now: Suppose the next year the California legislature simply changes the TITLE of the civil union statute to “Homosexual Marriage Act.” That’s all they change. Surely, it cannot be unconstitutional for an otherwise unconstitutional act to be LABELED a certain way by the legislature, can it? And if it was, the legislature could get around it by simply adopting a non-binding “comment” to the statute and by adopting the habit of referring to it as the “California Homosexual Marriage Act of 2004”. Surely it can’t be illegal or unconstitutional for California legislators to adopt an informal, shorthand label for the act, can it?

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This gets to the heart of the problem with both sides of the gay marriage debate. They are not clear about whether they are debating substance or semantics. In my view, no conservative or libertarian can have a principled objection to a state recognizing civil unions; it’s just a matter of contract, after all. Therefore, the entire debate seems to be what label should be used in the title of the statute. Does it really matter whether a statute is LABELED “marriage” or “civil union”? Who cares?

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