I haven’t said much about the Marriage is for Heterosexual Couples Only Amendment. This is one of those issues that is hard for me to argue because 1) it is such a no-brainer and 2) so many others are doing such a good job of arguing it that my “me too” is completely unnecessary I suppose I should add 3) and it’s going to fail even without my help). Today, however, Atrios says something that finally makes me want to weigh in to expand on his point.
A lot has been said about the meaning of the phrase "legal incidences thereof" in the Musgrave text for the amendment. Defenders of the amendment say that doesn’t close the door on some kind of civil unions, but to most of us it’s clear that that is exactly the point of those words. No marriage and nothing even marriage-like, no matter what you call it.
But, the general point behind the poorly-worded description is, I believe, that such an amendment would potentially have the impact of not simply enshrining marriage rights discrimination into the constitution, but also opening the door to more widespread discrimination. The amendment as written forbids not just marriage, but the "legal incidences thereof." While many have rightly commented on the fact that this would also destroy any kind of Civil Union legislation, I fear it would be much more sweeping than that. At a first pass, it could easily be interpreted as wiping out any kind of domestic partnership benefits. It could open the door to striking down housing anti-discrimination statutes if one were to interpret "cohabitation" as one of the legal incidences of marriage. It could overturn adoption rights legislation. etc... etc...
Such vague wording as "legal incidences thereof" is a godsend to conservative social revolutionaries and their judicial allies. What are the "legal incidences thereof" that are denied to any but heterosexual married couples? Does this amendment make it lawful to discriminate against cohabitating couples? Singles? Will palimony be open to challenge? Singles adopting? As a non-breeding breeder couple, are my wife and I a real married couple? Will cats still be allowed to inherit? Does this amendment repeal the14th Amendment, which forbids states to "deny any person within its jurisdiction the equal protection of its laws?" Only one of these questions is even slightly frivolous.
It’s almost impossible to overstate the importance of the federal constitution to our social, political, and legal lives. Any tinkering with it brings the wrath of the law of unintended consequences down upon our all our heads. But it’s even more scary when I think that these might not be unintended consequences; they might be very much intended.