Sunday, February 29, 2004


Kudos to Mark Dayton for coming out against the FMA, though his description of the amendment as being "unconstitutional" isn't really correct. What it does, like any amendment, is change the constitution. In theory, we could pass an amendment which repealed the first ten amendments, eradicating the Bill of Rights.

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... The FMA wouldn't simply remove "gay marriage" in name only, nor would it simply strike down the possibility for marriage-by-another-name "Civil Unions" legislation. It could conceivably overturn a plethora of civil rights advances that gay Americans have achieved over the last couple of decades.