Things To Act
Saturday, July 10, 2004
 
Does the FMA bar civil unions?
The SLTrib seems to think so, unjustifiably, in my opinion.
But S.J.R. 30 continues: "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."
This language is problematic, because it may eliminate the opportunity for states to provide same-sex couples, perhaps through civil unions, some of the "legal incidents" -- read "benefits" -- now associated only with marriage. For example, the right to make health-care decisions for an ailing partner.
This simply doesn't follow, in my understanding. The FMA was specifically amended to allow for the possibility of state-level civil unions after complaints that previous wording (which included references to state law as well as state constitutions) might bar them, given the right kind of activist judge. At most, the current version might bar civil unions in state constitutions, but wouldn't prevent them in state statutes (FMA sponsors had wanted to prevent judicial imposition of civil unions with the former language referring to state law, but agreed to drop the matter to simplify the issue). The Trib seems to be either in error or deliberately deceptive (it makes me wonder how many opponents of the FMA aren't going to let the fact that the FMA was amended to specifically allow civil unions stop them from claiming that it would bar them). In any event, the subject has been discussed extensively on Volokh, though the discussions are a few months old at this point.

It is worth noting, however, that the proposed Utah state-level amendment would indeed bar civil unions in Utah (though state constitutions are always subject to being overridden by federal law). This is interesting, particularly given that I am not aware of any official LDS position on civil unions. Nate Oman provides anecdotal evidence that the Church might not mind civil unions, which is interesting if true. It seems to me that the Church's public positions can be interpreted two different ways, either as 'opposition to all legal recognition of sodomous relationships,' or as 'wanting to preserve the traditional definition of "marriage," without caring about civil unions much.' I'd be interested if anyone can provide a definitive statement in which the Church clarified its position between these two options.

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