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No. 570

June 1, 2006

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The Federal Marriage Amendment

Unnecessary, Anti-Federalist, and Anti-Democratic

by Dale Carpenter

Executive Summary

Members of Congress have proposed a constitu-

marriage is a solution in search of a problem.

tional amendment preventing states from recogniz-

Second, a constitutional amendment defin-

ing same-sex marriages. Proponents of the Federal

ing marriage would be a radical intrusion on the

Marriage Amendment claim that an amendment is

nation's founding commitment to federalism in

needed immediately to prevent same-sex marriages

an area traditionally reserved for state regula-

from being forced on the nation. That fear is even

tion, family law. There has been no showing that

more unfounded today than it was in 2004, when

federalism has been unworkable in the area of

Congress last considered the FMA. The better view

family law.

is that the policy debate on same-sex marriage

Third, a constitutional amendment banning

should proceed in the 50 states, without being cut

same-sex marriage would be an unprecedented

off by a single national policy imposed from Wash-

form of amendment, cutting short an ongoing

ington and enshrined in the Constitution.

national debate over what privileges and benefits,

A person who opposes same-sex marriage on

if any, ought to be conferred on same-sex couples

policy grounds can and should also oppose a con-

and preventing democratic processes from recog-

stitutional amendment foreclosing it, on grounds

nizing more individual rights.

of federalism, confidence that opponents will pre-

Fourth, the amendment as proposed is consti-

vail without an amendment, or a belief that pub-

tutional overkill that reaches well beyond the stated

lic policy issues should only rarely be determined

concerns of its proponents, foreclosing not just

at the constitutional level.

courts but also state legislatures from recognizing

There are four main arguments against the

same-sex marriages and perhaps other forms of

FMA. First, a constitutional amendment is unnec-

legal support for same-sex relationships. Whatever

essary because federal and state laws, combined

one thinks of same-sex marriage as a matter of pol-

with the present state of the relevant constitution-

icy, no person who cares about our Constitution

al doctrines, already make court-ordered nation-

and public policy should support this unnecessary,

wide same-sex marriage unlikely for the foresee-

radical, unprecedented, and overly broad departure

able future. An amendment banning same-sex

from the nation's traditions and history.

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Dale Carpenter is associate professor of law at the University of Minnesota Law School.