Marriage amendment defeat stirs questions

News that Louisiana’s new constitutional marriage amendment had been overturned because it is too broad is reverberating in other states, where proposed amendments may be put to similar court tests.

At issue is whether voters can be asked to define what marriage is — and what it isn’t — in the same amendment. Or, as a Louisiana judge ruled Wednesday, must voters be given separate ballot questions on other kinds of marriagelike unions.

This question is being addressed in Louisiana, but it’s likely to be raised in several of the 11 states that have constitutional marriage amendments on their Nov. 2 ballots.

All of the amendments are designed to prevent “activist judges” from legalizing same-sex “marriage,” as Massachusetts’ high court did nearly a year ago.

Most, if not all, states say constitutional amendments must be limited to a single subject. Multiple sentences are allowed as long as they relate to the one subject.

Louisiana voted on its marriage amendment on Sept. 18. Nearly 78 percent of voters approved the amendment, which defines marriage as the union of one man and one woman, gives “legal incidents of marriage” only to married couples, prohibits recognition of “the legal status of any union of unmarried individuals” and prohibits recognition of out-of-state unions that are not of one man and one woman.

District Judge William Morvant in Baton Rouge, La., said Wednesday that the third clause of the amendment introduces “a separate object, which requires a separate amendment.”

Court observers inferred that Judge Morvant had been swayed by testimony that some voters may have wanted to oppose same-sex “marriage,” but that they approve of civil unions for homosexuals.

Since the third clause has a new subject, the court “expressly declares the said proposed constitutional amendment to be unconstitutional,” Judge Morvant wrote.

Defenders of the Louisiana amendment said lawmakers were well aware of the “one subject” amendment rule and wrote their amendment correctly.

“We believe there is really only one legal object with multiple parts” in the amendment, said Louisiana Attorney General Charles C. Foti Jr., who is defending the lawmakers.

“The defense of marriage between a man and a woman is the object and the parts support that, and therefore should be upheld,” he said.

“It’s all to advance one single purpose: to protect marriage from all perceived threats,” said Michael Johnson, a lawyer with the Alliance Defense Fund in Shreveport, La., who is also defending amendment supporters.

The third clause, which doesn’t mention civil unions by name, is intended to protect marriage from “all kinds of counterfeit marriages,” said Mr. Johnson, noting that there are several kinds of “faux marriages” in Europe as well as Vermont-style civil unions.

“To put it all into one amendment was not only a legitimate goal and objective, but it was a necessary one. Without it, you’ve left one large flank of marriage unprotected,” Mr. Johnson said.

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