Monday, 9 February 2004

Andrew Sullivan, Keith Burgess-Jackson, Eugene Volokh, and the FMA

Andrew Sullivan thinks that the proposed Federal Marriage Amendment would ban even legislatively enacted civil union statutes, such as Vermont’s.

Keith Burgess-Jackson accuses Sullivan of hysteria:

Andrew Sullivan has lost his bloody mind. In today’s blog (see here), he gives a hysterical misreading of the proposed Federal Marriage Amendment, then chastises The New York Times for not misreading it the same way.

How Sullivan could misread this simply worded amendment boggles my mind. His lack of legal training may explain some of it (does he not have legally trained friends?), but I think there’s more going on. His otherwise sound intellect fails him repeatedly when it comes to homosexual marriage (or homosexuality generally). Please, Andrew, get a grip. You’re embarrassing yourself.

Prof. Burgess-Jackson may want to take note that Eugene Volokh thinks the FMA admits just such a reading:

And if courts do treat the ambiguous phrase “incidents of marriage” as referring to the benefits, burdens, and practices that have traditionally accompanied marriage, then legislative civil union statutes may well become unconstitutional or at least unenforceable: As I said before, government officials would be prohibited from construing the statute according to its literal text, as providing some of the traditional benefits of marriage to unmarried couples. And if someone goes to court to challenge the official’s refusal to provide such benefits, then the court court would likewise be forbidden from construing the statute according to its literal text.

So is Prof. Volokh being "hysterical" as well? Has he too "lost his bloody mind"? Is his "otherwise sound intellect failing him"? Or maybe it’s Prof. Volokh’s "lack of legal training"?

UPDATE: Prof. Burgess-Jackson's Mea Culpa.