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of the FMA. For example, there is nothing

not avoid that prohibition simply by the ruse

akin to "Neither the United States nor any State

of calling its fleet an "armada" instead of a

"navy."65 Similarly, a person could not be con-

shall recognize any marriage other than the

union of one man and one woman." On its

victed of treason on the testimony of one wit-

face, the FMA appears to forbid both public

ness, rather than the constitutionally required

and private recognition of same-sex marriages.

two witnesses, simply by calling the same

At the extreme, it could be interpreted to pro-

offense "Schmeason." Even some drafters of

hibit religious denominations from recogniz-

the FMA have argued that the limitation of

ing same-sex marriages, as some now do. More

"marriage" to "a man and a woman" prohibits

both same-sex marriage and civil unions.66

likely, it could be interpreted to prohibit pri-

vate employers from making benefits available

Since the first sentences of all versions of the

on an equal basis to married employees and

proposed FMA are substantively identical, any

employees with same-sex partners. At the very

of them might be held to prohibit legislatively

least, it could be interpreted to prohibit courts

created civil unions.

from deciding disputes over private benefits

While it is not a foregone conclusion that

accorded same-sex couples because to do so

the first sentence of the various versions will

might mean granting same-sex couples "the

prohibit the legislative enactment of civil

If the purpose

legal incidents" of marriage.

unions and domestic partnerships, there will

of the second

The application of the FMA to private

certainly be a reasonable constitutional argu-

action is not an inevitable interpretation; sup-

ment to that effect. If the purpose of the sec-

sentence in the

porters deny that they intend such an interpre-

ond sentence in the Senate version is to make

Senate version is

tation. But their intent will not decide the issue

it clear that legislatures (but not courts or

to make it clear

when it reaches federal courts; the text of the

executives) may grant same-sex couples "the

amendment itself will be the main basis for any

legal incidents" of marriage, it does not clear-

that legislatures

decision. The issue will have to be litigated, and

ly accomplish that goal. Why not make leg-

(but not courts or

the uncertainty thus created may delay or com-

islative power over civil unions and domestic

pletely prevent the adoption of private-employ-

partnerships explicit rather than a negative

executives) may

er domestic partnership policies.

implication?

grant same-sex

Other difficult issues, such as the defini-

Moreover, this very uncertainty about the

couples "the

tion of "the legal incidents" of marriage, will

constitutionality of civil unions and domestic

also generate considerable litigation. Up to

partnerships will be used in state legislatures

legal incidents"

now, these matters have been left largely to the

as an argument against creating them to begin

of marriage, it

states. Now federal judges will be called upon

with. State legislators will be wary of acting in

does not clearly

to decide them. It is ironic that an amendment

an unconstitutional fashion and will be espe-

designed to avoid judicial activism in family

cially wary of creating a status full of entitle-

accomplish that

law will invite much more of it.

ments and responsibilities for same-sex cou-

goal.

ples only to have that status stripped away in

Particular Overbreadth Problems with

subsequent litigation. Thus, even if the revised

the Senate Version of the FMA

amendment is ultimately interpreted to allow

Sponsors of the Senate version claim that it

the legislative creation of civil unions and

clarifies their intention to allow state legisla-

domestic partnerships, it will have delayed and

tures to authorize "civil unions" and "domes-

deformed democratic debate on the issue.

tic partnerships."67 That, however, is not clear

All versions of the FMA suffer another

potential overbreadth problem. Almost every

in the Senate version, which nowhere actually

provision in our Constitution contains a state

states that intention. By striking the reference

action requirement. (The only relevant excep-

to "federal or state law" contained in the

tion is the Thirteenth Amendment, which for-

Musgrave version, the second sentence of the

bids slavery.) Yet there is no explicit state

Senate version seems to leave more room for

action element in any of the pending versions

the statutory recognition of civil unions and

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