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Monday, July 31, 2006

The Marshall Newman Amendment and The First Amendment Challenge

This is a bad law made worse by being a state constitutional amendment. Ironically, it used to be a conservative principle to not want to tamper with constitutional law without knowing what the unintended consequences could be. And there could be many consequences that even most conservatives don’t want to see occur.

To understand why, you need to see what the amendment says in its entirety. Here’s how the Marshall Newman Amendment reads:
“That only a union between one man and one woman may be a marriage valid in or recognized by this commonwealth and its political subdivisions.

This Commonwealth and its political subdivisions shall not create or recognize a legal status for relationships of unmarried individuals that intends to approximate the design, qualities, significance, or effects of marriage. Nor shall this Commonwealth or it s political subdivisions create or recognize another union, partnership, or other legal status to which is assigned the rights, benefits, obligations, qualities or effects of marriage.”

It’s the last paragraph that is problematic because it overreaches. It’s so broad that it could take away the rights of unmarried heterosexual couples and even two people of the same gender who happen to own a home together, pool their resources for economic reasons and don’t have an type of sexual relationship.

Indeed that’s why the AARP has gone on record opposing these types of laws.

The people who could be most impacted by unintended consequences from this amendment, as well as similar laws in other states, are the elderly. And as often happens, it’s a burden that would fall disproportionately on elderly women.

One reason is that women outlive men by a few years so there are more widows around than widowers. And there are many women who are heterosexual who never married despite wanting to be wives. So they are childless too. Many also may be sole survivors among their siblings.

With a thin support network, pooling resources including housing, utilities, and food costs makes sense. In addition, as people age and get frail it gets harder to live on their own. By teaming up with a best buddy, both may extend the time that they can live independently and stay out of nursing homes.

All of the issues such as medical consent, power of attorney, ability to enter into contracts, visitation in hospitals could be put into jeopardy for these senior citizens and destroy their efforts to stay independent and live out their last days in dignity.

That’s one issue.

Another is that for various reasons, heterosexual couples may not wish to marry. But they too could be affected by the overly broad reach of this amendment. I think that with this bill the state is overstepping its authority and reaching into areas of domestic arrangements that ought to remain private.

But it would be disingenuous of me to stop there. I frankly also don’t think the state ought to be in the business of defining marriage. I have no quarrel with any religious denomination defining the limits of whom they will give the marriage sacrament to and what they will recognize as a marriage. If it’s a religion of which I’m not a member, I’m not going to tell the faithful what I think they should do. It’s not my business.

But here’s the rub. What if a religious group, the Unitarian Universalists, for example, decided to perform same sex marriages – not domestic partner ceremonies, but actual marriages? Actually, there are several faith traditions that I could see taking that step besides the UUs. The Metropolitan Community Church, which is specifically a gay church, could do it (they may already). Reform Jews could take that leap, as could the United Church of Christ. I’m not saying any of them will, but it would be plausible for one of these denominations to do it since all of them have declared themselves “Welcoming Congregations” for gays.

So, if one of these religious groups offers same sex marriage ceremonies, is it a violation of their constitutional rights for any state to deny them that right? Does it become a First Amendment violation for the state to interfere with the practice of religion? Since most objections to gay marriage stem from a traditionalist interpretation of the Judeo-Christian religions, would it even be a violation of the Establishment Clause to impose the morality of the traditionalists on those of a non-mainstream religion?

There are, in fact cases, where the courts have ruled that states do have the right to interfere with religious practices, but there is a very high bar for states, which have to prove that it protects the common good. Indeed, there is a burden on the states to show how interfering with a religious practice is harmful and a danger to the public good before it can ban any practice.

The Supreme Court even ruled in favor of the Native American Church, which uses peyote as a sacrament. The Drug Enforcement Administration tried to prevent them from holding their peyote ceremonies and the case went all the way up to the highest court in the land, which ruled that as long as the Native American Church limited peyote use to its members, it did have the right to partake of its sacrament. Although prevention of drug abuse is considered a pretty strong example of protecting the public good, that argument did not prevail against the Native American Church.

So, I wonder what would happen if a church or denomination ever took the challenge?

It may be crazy. There may be something I’m overlooking. After all, I’m not a lawyer let alone a constitutional expert. But I’d love to hear from some of you out there who might have some thoughts and even some legal expertise. Is any of this a plausible scenario for a constitutional challenge at the federal level?


David said...

Excellent post. You are right, this is exactly the scenario in which some vindictive or greedy family member who doesn't like Grandma's boyfriend could come in and wreak havoc on their lives by challenging medical directives, wills, you name it.

I've noticed how the pro-amendment folks consistently try to misrepresent our concerns about this language as "fears that the amendment will invalidate private contracts," as if they would all go "poof" the day after the amendment went into effect. AG Bob McDonnell did it last night at the NoVA town hall meeting, by choosing his words very carefully. That's why the "official explanation" he drafted frames the question in terms of what it will not do.

That's not the problem with the amendment, and that's not our argument.

Further, your points about the religious liberty intrusion are very well taken. It is currently illegal for ministers to perform the marriage ceremonies that you cite, but the law is effectively unenforceable because it is trumped by the religious liberty clause of the Bill of Rights. And the proposed amendment would go where? Our Bill of Rights.

I have a post about this up at Equality Loudoun.

AnonymousIsAWoman said...

Thanks David.

It really frustrates me that no religious group has gone to court to challenge this as an intrusion on their civil liberties.

I see First Amendment ramifications, especially the Establishment Clause, which forbids the government to establish or favor any particular religion.

I wish some lawyer or somebody with more legal insight would come on to my site and explain why nobody has taken that tact. It seems a natural to me. What are the pitfalls of trying it that I may have overlooked?