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Here's the full article that is referenced in the FAIR article. I had to register for the online version of the Post to get this, so I'm posting it in its entirety. You cannot read this article and still contend that the wording of the amendment is clear as to whether or not it would ban civil unions.
>>>>>
http://www.washingtonpost.com/wp-dyn/artic...-2004Feb13.html
Little Consensus on Marriage Amendment
Even Authors Disagree on the Meaning of Its Text
By Alan Cooperman
Washington Post Staff Writer
Saturday, February 14, 2004; Page A01
In the spring and summer of 2001, a group of conservative legal scholars including former Supreme Court nominee Robert H. Bork hammered out the proposed text of a constitutional amendment banning same-sex marriage.
Participants say it was an informal, somewhat "messy" process conducted by e-mail and telephone so the text could be announced that July by a group of religious leaders called the Alliance for Marriage. According to the alliance's president, Matt Daniels, the drafters did not worry too much about the wording, because "I don't think we expected that there would be this much attention paid to it."
Three years later, with Massachusetts on the verge of granting marriage licenses to gay couples and San Francisco city officials already doing so, more than 100 members of Congress have co-sponsored the proposed amendment, and White House aides say President Bush is about to endorse it. Yet there is no consensus -- even among its authors -- about what the text means.
Though it is just two sentences long, the amendment's possible interpretations are a matter of furious debate among constitutional scholars and political activists, with some contending that it would allow Vermont-style civil unions and others saying it would not.
Known as the Musgrave amendment for its congressional sponsor, Rep. Marilyn Musgrave (R-Colo.), it states: "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, nor state or federal law, shall be construed to require that marital status or the legal incidents thereof be conferred upon unmarried couples or groups."
Musgrave, Daniels and White House officials all say the intent is to prevent judges from ordering states to grant marriage licenses or civil unions to same-sex couples, as courts in Vermont and Massachusetts have done.
But they say the proposal is not meant to stop state legislatures from creating civil unions that give gay couples some of the tax benefits, inheritance rights and other privileges of marriage.
"The intent from Day One has been respectful of state legislatures," Musgrave said. "I don't support civil unions, but I'm ready to have those battles state by state."
To become part of the Constitution, the amendment must be passed by a two-thirds majority in both houses of Congress and ratified by two-thirds of the states, a years-long process in which the text's meaning will be made abundantly clear, Musgrave added.
"Future courts will have no doubt about what the legislative intent was," she said.
Such assurances, however, have not quelled the debate. According to experts on constitutional law at several universities, there is broad agreement that the first sentence of the amendment would reserve the word "marriage" for the union of a man and a woman. But that is where the agreement ends.
Two of the amendment's principal authors, professors Robert P. George of Princeton and Gerard V. Bradley of Notre Dame Law School, contend that the opening sentence also would forbid some kinds of civil unions.
They argue that future courts would have to interpret the amendment to protect not just the word "marriage," but also its essential meaning -- in the same way that, if the Constitution forbade states from creating "navies," they clearly could not establish "flotillas" or "armadas," either.
In an interview, George contended that marriage, at its legal core, is a "sexual union," and that the amendment would bar states from extending the legal benefits of marriage to gay couples, or anyone else, "based on the presumption that they have a sexual relationship outside of marriage." In his view, however, states could define a civil union as any two unmarried adults sharing a household.
George acknowledged that this interpretation is not widely shared among amendment backers. When he, Bork, Bradley and others were circulating drafts three years ago, he said, they were trying to satisfy many conservative constituencies.
"Some people wanted to ban all civil unions," he said. "Some people wanted a pure federalism amendment" -- one that would guarantee that no state has to recognize same-sex unions granted by another state -- "and some wanted a pure judicial restraint amendment" that would tie judges' hands.
If anyone imagines that a modern James Madison went into a room and penned the amendment, "that would not be an accurate picture. It was a much more fluid process, with many participants," George said. "It was messy, but that's just a reality."
The amendment's second sentence, in particular, bears the hallmarks of committee action. Gay rights groups contend that the phrase about "legal incidents" of marriage would bar civil unions, and that evangelical Christian organizations are trying to sell the amendment to the public as more moderate than it is.
Evangelical leaders respond by pointing to the open divisions in their own camp: Some conservative groups, such as Concerned Women for America and the Home School Legal Defense Association, oppose the Musgrave language because they want to ban civil unions and do not think it would do so.
Bork has been a Republican icon since the Senate rejected his Supreme Court nomination in 1987. His involvement with the amendment has raised its credibility among conservatives but deepened liberals' suspicions.
Peter J. Rubin, a professor at Georgetown University Law Center who heads the liberal American Constitution Society, said he originally thought the Musgrave amendment "couldn't possibly have been the work of a lawyer."
But after learning that Bork and other eminent scholars were involved, Rubin began to see more in the text. "If they don't mean it, it's sloppy," he said. "If they do mean it, it's mean-spirited."
Rubin and other legal scholars engaged in the debate said they are not questioning anyone's integrity. "But surely it is right to ask not only what are the intended consequences of the proposal, but the unintended ones, as well," said Eugene Volokh of the University of California at Los Angeles Law School.
Volokh, a libertarian who has often sided with Christian conservatives in legal disputes, argues that the amendment might not prevent legislatures from enacting civil unions but would make them unenforceable.
He poses the hypothetical case of a gay man trying to add his partner to an insurance policy. The insurance administrator turns him down. The man argues that, under the state's civil union law, he and his partner must be treated as a married couple. "Not so," the administrator replies. "The Federal Marriage Amendment specifically says that no state law shall be construed to require that marital status or the legal incidents thereof be conferred upon unmarried couples."
If the gay couple went to court, Volokh said, judges might well agree with the administrator.
Bork, a former federal judge, called Volokh's argument "unrealistic."
"This whole thing," he said, "is really in response to courts that are running away" in favor of homosexual partnerships, not against them. "If there were any ambiguities," he said, "courts that are inclined toward civil unions would resolve them in that direction."
>>>>>
http://www.washingtonpost.com/wp-dyn/artic...-2004Feb13.html
Little Consensus on Marriage Amendment
Even Authors Disagree on the Meaning of Its Text
By Alan Cooperman
Washington Post Staff Writer
Saturday, February 14, 2004; Page A01
In the spring and summer of 2001, a group of conservative legal scholars including former Supreme Court nominee Robert H. Bork hammered out the proposed text of a constitutional amendment banning same-sex marriage.
Participants say it was an informal, somewhat "messy" process conducted by e-mail and telephone so the text could be announced that July by a group of religious leaders called the Alliance for Marriage. According to the alliance's president, Matt Daniels, the drafters did not worry too much about the wording, because "I don't think we expected that there would be this much attention paid to it."
Three years later, with Massachusetts on the verge of granting marriage licenses to gay couples and San Francisco city officials already doing so, more than 100 members of Congress have co-sponsored the proposed amendment, and White House aides say President Bush is about to endorse it. Yet there is no consensus -- even among its authors -- about what the text means.
Though it is just two sentences long, the amendment's possible interpretations are a matter of furious debate among constitutional scholars and political activists, with some contending that it would allow Vermont-style civil unions and others saying it would not.
Known as the Musgrave amendment for its congressional sponsor, Rep. Marilyn Musgrave (R-Colo.), it states: "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, nor state or federal law, shall be construed to require that marital status or the legal incidents thereof be conferred upon unmarried couples or groups."
Musgrave, Daniels and White House officials all say the intent is to prevent judges from ordering states to grant marriage licenses or civil unions to same-sex couples, as courts in Vermont and Massachusetts have done.
But they say the proposal is not meant to stop state legislatures from creating civil unions that give gay couples some of the tax benefits, inheritance rights and other privileges of marriage.
"The intent from Day One has been respectful of state legislatures," Musgrave said. "I don't support civil unions, but I'm ready to have those battles state by state."
To become part of the Constitution, the amendment must be passed by a two-thirds majority in both houses of Congress and ratified by two-thirds of the states, a years-long process in which the text's meaning will be made abundantly clear, Musgrave added.
"Future courts will have no doubt about what the legislative intent was," she said.
Such assurances, however, have not quelled the debate. According to experts on constitutional law at several universities, there is broad agreement that the first sentence of the amendment would reserve the word "marriage" for the union of a man and a woman. But that is where the agreement ends.
Two of the amendment's principal authors, professors Robert P. George of Princeton and Gerard V. Bradley of Notre Dame Law School, contend that the opening sentence also would forbid some kinds of civil unions.
They argue that future courts would have to interpret the amendment to protect not just the word "marriage," but also its essential meaning -- in the same way that, if the Constitution forbade states from creating "navies," they clearly could not establish "flotillas" or "armadas," either.
In an interview, George contended that marriage, at its legal core, is a "sexual union," and that the amendment would bar states from extending the legal benefits of marriage to gay couples, or anyone else, "based on the presumption that they have a sexual relationship outside of marriage." In his view, however, states could define a civil union as any two unmarried adults sharing a household.
George acknowledged that this interpretation is not widely shared among amendment backers. When he, Bork, Bradley and others were circulating drafts three years ago, he said, they were trying to satisfy many conservative constituencies.
"Some people wanted to ban all civil unions," he said. "Some people wanted a pure federalism amendment" -- one that would guarantee that no state has to recognize same-sex unions granted by another state -- "and some wanted a pure judicial restraint amendment" that would tie judges' hands.
If anyone imagines that a modern James Madison went into a room and penned the amendment, "that would not be an accurate picture. It was a much more fluid process, with many participants," George said. "It was messy, but that's just a reality."
The amendment's second sentence, in particular, bears the hallmarks of committee action. Gay rights groups contend that the phrase about "legal incidents" of marriage would bar civil unions, and that evangelical Christian organizations are trying to sell the amendment to the public as more moderate than it is.
Evangelical leaders respond by pointing to the open divisions in their own camp: Some conservative groups, such as Concerned Women for America and the Home School Legal Defense Association, oppose the Musgrave language because they want to ban civil unions and do not think it would do so.
Bork has been a Republican icon since the Senate rejected his Supreme Court nomination in 1987. His involvement with the amendment has raised its credibility among conservatives but deepened liberals' suspicions.
Peter J. Rubin, a professor at Georgetown University Law Center who heads the liberal American Constitution Society, said he originally thought the Musgrave amendment "couldn't possibly have been the work of a lawyer."
But after learning that Bork and other eminent scholars were involved, Rubin began to see more in the text. "If they don't mean it, it's sloppy," he said. "If they do mean it, it's mean-spirited."
Rubin and other legal scholars engaged in the debate said they are not questioning anyone's integrity. "But surely it is right to ask not only what are the intended consequences of the proposal, but the unintended ones, as well," said Eugene Volokh of the University of California at Los Angeles Law School.
Volokh, a libertarian who has often sided with Christian conservatives in legal disputes, argues that the amendment might not prevent legislatures from enacting civil unions but would make them unenforceable.
He poses the hypothetical case of a gay man trying to add his partner to an insurance policy. The insurance administrator turns him down. The man argues that, under the state's civil union law, he and his partner must be treated as a married couple. "Not so," the administrator replies. "The Federal Marriage Amendment specifically says that no state law shall be construed to require that marital status or the legal incidents thereof be conferred upon unmarried couples."
If the gay couple went to court, Volokh said, judges might well agree with the administrator.
Bork, a former federal judge, called Volokh's argument "unrealistic."
"This whole thing," he said, "is really in response to courts that are running away" in favor of homosexual partnerships, not against them. "If there were any ambiguities," he said, "courts that are inclined toward civil unions would resolve them in that direction."
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