Why South Dakota’s Proposed Marriage Amendment Needs That Second Sentence

Received this today. It's a very detailed explanation of why the oft ballyhooed second sentence is in Amendment C.

You can read it below, or download the pdf
here.

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THE CATHOLIC UNIVERSITY OF AMERICA
COLUMBUS SCHOOL OF LAW
INTERDISCIPLINARY PROGRAM IN LAW & RELIGION
THE MARRIAGE LAW PROJECT
WASHINGTON, DC 20064

Why South Dakota’s Proposed Marriage Amendment Needs That Second Sentence

October 13, 2006

The proposed constitutional amendment on marriage that South Dakotans will vote on next month has been drafted with care and foresight. It is not too broad, but merely acknowledges current realities and real-world contingencies.

The first sentence of the amendment limits marriage to the union of a man and a woman. The second sentence adds that “civil unions,” “domestic partnerships,” and “other quasi-marital relationships” will not be valid in the State. Some South Dakotans are asking whether that second sentence goes too far.

Vermont, Connecticut, and California have proved that other States can create marriage-like institutions and name them something other than “marriage.” Are South Dakotans supposed to pretend that civil unions and domestic partnerships don’t exist? An amendment without a second sentence would be years out-of-date and entirely incapable of protecting marriage.

Some opponents of the marriage amendment will not support it no matter how brilliantly it is drafted. Their chief complaint is with our ancient understanding of marriage, and not with the details of the second sentence.

I. The Laws of South Dakota

Proposed Constitutional Amendment. On November 7, South Dakotans will vote on a marriage amendment that will appear on the ballot as Constitutional Amendment C. If it gets a majority of the vote, the following text will be added to Article XXI of the South Dakota Constitution:

“Only marriage between a man and a woman shall be valid or
recognized in South Dakota. The uniting of two or more persons in a
civil union, domestic partnership, or other quasi-marital relationship
shall not be valid or recognized in South Dakota.”

Current Statute. South Dakota already has a statute that restricts marriage to a man and a woman. That law reads:

“Marriage is a personal relation, between a man and a woman, arising out of a civil contract to which the consent of parties capable of making it is necessary. Consent alone does not constitute a marriage; it must be followed by solemnization.” South Dakota Codified Laws §25-1-1.

The underlying policy of Section 25-1-1 has been on the books for many decades, but the key phrase “between a man and a woman” was added in 1996 by Session Laws 1996, chapter 161, approved February 21, 1996. At the time, the courts in Hawaii appeared ready to impose same-sex “marriage” on that State, and South Dakota and many other States responded by passing what became known as “Defense of Marriage Acts” (DOMAs).

The proposed constitutional amendment codifies the statutory definition of marriage as requiring a man and a woman, but it also does more. The amendment will provide added clarity and certainty where current law is silent.

Conjugal Marriage in South Dakota. Although the current version of Section 25-1-1 is only a decade old, the man-woman requirement for marriage in South Dakota law is older than the State itself. For example, in 1887, two years before the State of South Dakota was created, the following provision was enacted by the Territorial Assembly of Dakota: “From and after the passage of this act, women shall retain the same legal existence and legal personality after marriage as before marriage, and shall receive the same protection of all her rights as a woman, which her husband does as a man. . . .” Territorial Laws of Dakota, chapter 98, § 1 (approved Feb. 17, 1887), Compiled Laws of Dakota, Civil Code, §2600 (1887) (emphasis added).

II. The First Sentence of the Proposed Amendment

The ancient understanding of marriage is under attack across the globe, and the first sentence of the proposed amendment is a partial response to that attack. The sentence would have been advisable for South Dakota even if judges in Massachusetts hadn’t legalized same-sex “marriage,” but Massachusetts provides the best American example of why marriage needs to be defined explicitly in the South Dakota Constitution.

Four Massachusetts judges held that the male-female requirement for marriage was outmoded and unconstitutional, and they ordered that marriage be transmogrified to accommodate two persons of the same sex. Goodridge v. Dept. Public Health, 798 N.E. 2d 941 (Mass. 2003). If South Dakotans want to insure against that same result in their State, they ought to amend their Constitution.

With an amendment in place, South Dakota’s courts will have clear guidance from the text of the Constitution, the document through which the people of South Dakota have expressed their will. Similarly, if an executive or administrative agency in South Dakota is required to make a decision about a same-sex “marriage” from Massachusetts, Canada, or elsewhere, the law will be as clear as words can make it.

III. The Second Sentence of the Proposed Amendment

The second sentence protects the amendment against redefinitions and word-play. Its importance is shown by the examples of Vermont1 and Connecticut2 which have created civil unions that give same-sex couples exactly the same legal benefits and obligations as married couples. In those two States, there are no legal differences between the two institutions (except for the name).

The first sentence of the proposed amendment says what South Dakotans believe that marriage is. The second sentence says that South Dakotans will accept no substitutes, however named.

Without the second sentence, a South Dakota court or executive or administrative agency would have no guidance on the legal status of a Vermont or Connecticut civil union. The statute, which speaks only of marriage, certainly does not provide any.
1“Parties to a civil union shall have all the same benefits, protections and responsibilities under law, whether they derive from statute, administrative or court rule, policy, common law or any other source of civil law, as are granted to spouses in a marriage.” 15 Vermont Statutes Annonated §1204(a) (as added by 1999, no. 91, Adj. Sess., § 3).

2“Parties to a civil union shall have all the same benefits, protections and responsibilities under law, whether derived from the general statutes, administrative regulations or court rules, policy, common law or any other source of civil law, as are granted to spouses in a marriage, which is defined as the union of one man and one woman.” Connecticut General Statutes Annotated §46b-38nn (as added by 2005 PA 05-10, § 14).

Quasi-Marital Relationships. Sentence two encompasses all relationships that are “quasi-marital.” In America today, a Vermont civil union and a Connecticut civil union clearly are “quasi-marital relationships.” Hawaii’s current reciprocal beneficiaries law3 is more limited and probably does not create a “quasi-marital relationship” – but if the Hawaii law were to be expanded it might become a “quasi-marital relationship.” Conversely, if the Vermont or Connecticut laws were to be renamed but otherwise unchanged, they still would be “quasi-marital relationships.” Names are important, but it is the underlying legal reality that determines the status of the named relationship.

California has established “registered domestic partnerships” (see below), and those partnerships also are clearly “quasi-marital,” but New Jersey’s “domestic partnerships”4 are more limited (as currently constituted) and may or may not be “quasi-marital” under South Dakota’s proposed amendment.

Whatever judgment is made about New Jersey’s “domestic partnerships” under South Dakota law, the decision will apply to both same-sex couples and opposite-sex couples. New Jersey allows male-female couples to establish a domestic partnership if the partners are age 62 or older. N.J.S.A. 26:8A-4.b(5).

The term “quasi-marital” is unique to the marriage-protection law of South Dakota. As near as we can tell, no other State uses the term. The pending text was 3“The purpose of this chapter is to extend certain rights and benefits which are presently available only to married couples to couples composed of two individuals who are legally prohibited from marrying under state law.” Hawaii Revised Statutes §572C-1 (as added by Laws 1997, chap. 383, § 1).

4“[T]he legislature believes that [domestic partnerships] should be formally recognized by statute, and that certain rights and benefits should be made available to individuals participating in them, including: statutory protection against various forms of discrimination against domestic partners; certain visitation and decision-making rights in a health care setting; and certain tax-related benefits; and, in some cases, health and pension benefits that are provided in the same manner as for spouses.” New Jersey Statutes Annotated §26-8A-2.c. (as added by Laws 2003, chapter 246, section 60). drafted expressly for the people, laws, and precedents of South Dakota, because the term “quasi” is entirely familiar to South Dakota law.

South Dakota’s courts have dealt with quasi institutions and quasi actions in nearly 300 cases. In those cases, quasi has been conjoined (sometimes with a hyphen, sometimes not) to all of the following:

admission ministerial act proprietary interest assignee municipal corporation public banking business negotiable remedy contract nonresident domestic rights of redemption contractual obligation corporation sovereign corporation permanently suretyship criminal personal property suspect class Indian reservation principals technical meaning in rem prerogative writs tenant judicial property title, and legislative trustee.

The South Dakota code uses quasi in some 60 sections. Most involve the “quasi-judicial functions” and “quasi-legislative functions” that are granted to various administrative agencies. South Dakota Codified Laws §1-32-1(10)-(11). Many of the cases have involved the definition and scope of those functions.

South Dakota’s Attorney General has issued official opinions on whether the South Dakota Housing Development Authority is an “independent quasi-governmental agency,” Opinion No. 88-41 (1988), and whether the Custer County Food Pantry is a “quasi-governmental organization,” Opinion No. 89-26 (1989).

With this history, no one can pretend that South Dakota’s courts or administrative or executive agencies will be baffled by the meaning of “quasi-marital relationship.” They have plenty of experience with “quasi” institutions and actions.

The Dynamics of Change. The use of the term “quasi-marital relationship” is wise and far-seeing. South Dakotans will be voting on an amendment intended to endure for generations, and it must take into account institutions and concepts and names that may not now exist. And even those institutions that now exist are not going to continue unchanged.

As noted above, California has established registered domestic partnerships for same-sex couples,5 but the California law was amended just recently. On September 30, 2006, the Governor signed Senate Bill 1827 which allows registered domestic partners to file joint tax returns under State law, something they were prohibited from doing under former law. The newly enacted bill removes what may have been the last legal distinction in California between married couples and domestic partners.

The California example shows that laws change, and that a term like “domestic partnership” may have different meanings at different times. Another State’s “domestic partnerships” may constitute a “quasi-marital relationship” at one time but not another. The results turn on the facts, not the titles.
Is Sentence Two Necessary? Sentence two is essential because current legal developments make it so. There are now in the United States civil unions and domestic partnerships that are either identical to marriage or its substantial equivalent. These quasi-marital arrangements did not exist when South Dakota’s DOMA was enacted in 1996.

If the second sentence were to be removed from the proposed amendment – ostensibly to make it more narrow or less ambiguous – the amendment would be silent about laws in Vermont, California, and Connecticut that are now on the books. The amendment would be a decade out-of-date and totally inadequate to deal with future developments.

It is impossible to say with absolute certainty what “quasi-marital relationships” will be interpreted to mean at some future date, but that is no reason
5“Registered domestic partners shall have the same rights, protections, and benefits, and shall be subject to the same responsibilities, obligations, and duties under law, whether they derive from statutes, administrative regulations, court rules, government policies, common law, or any other provisions or sources of law, as are granted to and imposed upon spouses.” West’s Ann. California Family Code §297.5(a) (added by Stats. 2003, c. 421 (AB 205), § 4, eff. Jan. 1, 2005).
to omit it. At some level, all language is ambiguous; law is not mathematics. Removing the second sentence would produce worse law, not better. The supposed gain to be had by removing the allegedly ambiguous term would be vastly overshadowed by new uncertainties.

A judge presiding over a trial that asks whether a Ford Taurus is “the same” as its Mercury Sable twin is, we hope, going to make an inquiry beyond the nameplates. In the case of marriage, the “quasi-marital relationship” language tells a court to look beyond the label that another State has affixed. Without the second sentence, a judge has no guidance whatsoever.

IV. Conclusion

South Dakota’s proposed amendment has been thoughtfully drafted. Its terms are not broad, but limited and narrow. It defines marriage and makes that definition exclusive. Also, because the authors were not oblivious to developments elsewhere, the proposed amendment covers marriage-like arrangements that mimic marriage.

Marriage has its own dignity and compelling purposes that are rooted in real human experience. It is not based on animus toward homosexuals or anyone else.

Marriage needs both statutory and constitutional protection because it is under attack from those who will succeed if they can find just a handful of judges to agree with them.
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