A Stitch in Haste

A bit of buzz yesterday when President Bush appeared to reverse his position on civil unions given his endorsement of the Federal Marriage Amendment:

"I don’t think we should deny people rights to a civil union, a legal arrangement, if that’s what a state chooses to do so," Bush said in an interview aired Tuesday on ABC. Bush acknowledged that his position put him at odds with the Republican platform, which opposes civil unions.

"I view the definition of marriage different from legal arrangements that enable people to have rights," said Bush, who has pressed for a constitutional amendment to ban gay marriage. "States ought to be able to have the right to pass laws that enable people to be able to have rights like others."

The first reaction was to claim the President's position was self-contradicting, since "the FMA" seemed on its face to ban not only gay marriage, but also civil unions (and not just gay civil unions, mind you, but all non-marital domestic partnership laws).

Apparently that position depends on which version of the FMA you're using (see also here, and here, citing to Volokh).

I have no interest in the hypothesis that whether Bush flip-flopped depends on which version of FMA one uses.

Bush flip-flopped in an entirely different and far more flagrant way!

The President has said the following repeatedly:

The sacred institution of marriage should not be redefined by a few activist judges.

This links back to something Volokh wrote in his post that is as bizarre as it is wrong (wouldn't be the first time):

A state could still "choose to" recognize "a civil union" as "a legal arrangement." It would have to do so via a statute — just as most family law is defined by statute — not via a court decision or (probably) a constitutional amendment.

Huh? That's like saying "just as most tax law is defined by the Sixteenth Amendment." Is Volokh really so ignorant of family law (or as we say in New York, "domestic relations law")?

Legal definitions, whether they come from statute or a constitution or a hornbook, are only the beginning of legal analysis, not the end. This bramble bush will grow by an order of magnitude when one is discussing an entirely new legal concept such as "civil unions."

Exactly what is a civil union? Will it be the same in New York as in Nevada? Which of the hundreds of rights and powers associated with traditional marriage are we going to convey? How portable should those rights be? How shall we handle "divorce"? Joint property? Estate law? Child custody? Alimony and child support? Adoption? Agency relations and powers of attorney? Employee benefits? Housing law? And so on, and so on, and so on...

And the whole Full Faith and Credit debate is far from over (I would dare say it hasn't even begun), not to mention the more comprehensive (and more difficult) field of "conflict of laws" that subsumes "full faith and credit." And of course let's not forget DOMA. How will that play into the mix?

So, questions and questions and more questions, which will only explode in number as more and more states act one way of the other and the number of civil unions increases. Who is going to answer all those questions? Hint: It won't be any state legislature passing a statute, or an electorate voting on a referendum or ballot initiative.

Of course, it will be those same "activist judges" whom the President claims to oppose. These questions will be litigated, not legislated.

So first President Bush was opposed to interference from "activist judges" regarding marriage and now he's all for it regarding quasi-marriage?

That, my friends, is a flip-flop.

Related Posts:
A Stitch in Haste Withholds Presidential Endorsement
House Wastes Time Votes Down FMA (with archive)

(Cross-linked at Outside the Beltway.)