Eugene Volokh and Ramesh Ponnuru are debating a point of the Federal Marriage Amendment.
The gist of the argument is that Ramesh believes a state could institute civil unions and Eugene and Andrew Sullivan disagree. You can read their thoughts via Eugene’s post.
Here’s mine. While Eugene makes a very good argument, I think Ramesh wins, but not necessarily for the reasons he says.
I think activists judges, which for the foreseeable we will not be rid of, will decide civil unions are okay under the amendment. Given judicial tendencies in cases like Lawrence v. Texas, whether the amendment intends to prohibit civil unions or not, Sandra Dee will allow them.