News Release

September 27, 2004

Media Contact: (202) 789-5200

Amendment, not marriage, contrary to American values
Amending the Constitution to ban same-sex marriage flies in the face of federalism

WASHINGTON--The House of Representatives is expected to vote this week on the Federal Marriage Amendment. According to a new paper from the Cato Institute, no matter how one feels about same-sex marriage, a constitutional amendment is not the answer.

In "The Federal Marriage Amendment: Unnecessary, Anti-federalist, and Anti-democratic," Dale Carpenter, assistant professor at the University of Minnesota Law School, argues that the debate over same-sex marriage policy should remain in the states and that the federal government should not override state marriage laws.

Carpenter spells out four distinct arguments against the amendment:

1. Same-sex marriage is already unlikely. A constitutional amendment is unnecessary because federal and state laws, combined with the present state of the relevant constitutional doctrines, already make court-ordered nationwide same-sex marriage unlikely for the foreseeable future. An amendment banning same-sex marriage is a solution in search of a problem.



2. Family law is traditionally a state issue. A constitutional amendment defining marriage would be a radical intrusion on the nation's founding commitment to federalism in an area traditionally reserved for state regulation -- family law. There has been no showing that federalism has been unworkable in the area of family law.



3. An amendment would cut short an ongoing national debate over gay marriage. A constitutional amendment banning same-sex marriage would be an unprecedented form of constitutional amendment, intruding upon the national debate over what privileges and benefits, if any, ought to be conferred on same-sex couples, and preventing democratic processes from recognizing individual rights.



4. The proposed amendment is constitutional overkill. The amendment as proposed reaches well beyond the stated concerns of its proponents, foreclosing not just courts but also state legislatures from recognizing same-sex marriages and perhaps other forms of legal support for same-sex relationships.

"A person who opposes same-sex marriage on policy grounds can and should also oppose a constitutional amendment foreclosing it on grounds of federalism, confidence that opponents will prevail without an amendment, or a belief that public policy issues should only rarely be determined at the constitutional level," Carpenter argues.

Personal beliefs about family life, he writes, should not matter when it comes to amending the Constitution. "No person who cares about our Constitution and public policy should support this unnecessary and overly broad departure from the nation's tradition and history."

The Federal Marriage Amendment: Unnecessary, Anti-federalist, and Anti-democratic