The evolution of the Federal Marriage Amendment in Congress is very illuminating to the current debate here in Indiana over the controversial second paragraph of SJR-7. As Don Sherfick related to members of the House Rules and Procedures Committee last week, the second paragraph of the original version of the FMA (upon which SJR-7 is based) was amended due to concerns it would deny the legislature discretion to legislate in the area of civil unions and other benefits for unmarried couples. As it turns out, nobody was more concerned about the language in the second paragraph than one of its principal draftsmen, Judge Robert Bork. During testimony before the House Judiciary Committee on May 13, 2004, Bork described the second paragraph as being "poorly drafted" and causing "needless controversy". At his urging, the FMA was amended to make it clear the legislature had the right to legislate these rights. Bork told the Committee:
Objections to this second sentence have convinced me that it is poorly drafted and causes needless controversy. Critics say that, read literally, the sentence would forbid courts to implement legislatively-enacted civil unions. That was not the intent. It was hoped that this objection could be avoided by making the intention of the sentence clear in the debates that would surround the amendment in Congress and, if sent to the states, in the ratification debates. It was thought, moreover, that the word ‘‘construed’’ would indicate that the sentence was intended merely to restrain activists courts from requiring civil unions against the desires of the legislature involved.
There is no point in debating this matter when altering the language of the second sentence can make the point clear. For that reason, I recommend the version of the second sentence contained in Senate Joint Resolution 30: "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." There is no doubt whatever, that this sentence leaves legislatures free to provide for civil unions if they wish. Thus, Vermont, which now has civil union legislation enacted under the coercion of its supreme court, would be free either to retain or repeal that legislation. The Senate language makes absolutely clear what was intended in the House version of the Federal Marriage Amendment.
So the gig is up. Either Senator Brandt Hershman (R-Wheatfield) and the proponents of SJR-7 inadvertently copied the wrong version of the FMA making it applicable to "any state law", as well as the constitution, or they deliberately chose this version knowing full well it indeed does more than what they are telling Indiana lawmakers and the public. There's no mistaking the extent to which Bork's comments back in 2004 are now haunting SJR-7's proponents. Bork, who was no activist judge when he served on the federal Court of Appeals, was rejected by the U.S. Senate because of his adherence to a very strict interpretation of our U.S. Constitution. The proponents can't simply dismiss his comments about the second paragraph as "politics" as they have done other opponents of the amendment.
I should add that, even with the removal of the "any state law" language, there remains considerable confusion surrounding the term "legal incidents of marriage". As Professor Aviva Orenstein testified last week, there is no clear definition of what the term means based upon case law here or elsewhere.
A big hat tip to Ed Fox for tracking down Judge Bork's testimony before the House Judiciary Committee.