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A constitutional

Introduction

constitutional amendment should dispose of

the matter. Whether states should recognize

amendment

same-sex marriages is one question. Whether

Members of Congress have proposed a fed-

defining marriage

they should be permitted to recognize same-sex

eral constitutional amendment preventing

would be a radical

marriages is a separate question. A person who

states from recognizing same-sex marriages.

opposes same-sex marriage on policy grounds

As of now, a nationwide policy debate is under

intrusion on the

can and should also oppose a constitutional

way on the merits of providing full marital

nation's founding

amendment foreclosing it.4 An opponent of

recognition to gay couples. That debate is still

in its infancy and is proceeding in a variety of

gay marriage might oppose a constitutional

commitment to

ways with divergent policy choices being con-

amendment for any one or combination of

federalism.

sidered in the states. It should not be cut off by

the following reasons: (1) he believes that fed-

a constitutional amendment that would sub-

eralism--the traditional, decentralized struc-

stantially delay or permanently foreclose what

ture of American government--is the best

might otherwise turn out to be a valuable

answer to most disputes about public policy;

social reform. Such an amendment was not

(2) he is confident that his opposition will pre-

needed even two years ago when Congress last

vail without the need for a constitutional

considered it, and the passage of time has fur-

amendment; (3) although he opposes gay

ther weakened the case for an amendment.

marriage, he is open to subsequent persuasion

Pointing to litigation pressing for the

by arguments and evidence against his current

recognition of state and federal constitutional

view and wants public policy to remain flexi-

rights to same-sex marriage, especially the

ble enough to adjust over time. Not every pol-

Massachusetts Supreme Judicial Court's deci-

icy position one holds must be imposed

sion in Goodridge v. Department of Public Health,1

forevermore on the whole nation by constitu-

tionalizing it. For the same reasons, one who is

and to the actions of various local officials

unsure how he feels about same-sex marriage

around the country recognizing gay mar-

riages,2 proponents of the Federal Marriage

can and should oppose a constitutional

amendment foreclosing it.

Amendment have claimed that an amend-

To summarize the four main points: First,

ment is needed immediately to prevent same-

a constitutional amendment is unnecessary

sex marriages from being forced on the nation.

because federal and state laws, combined with

Since there is little likelihood that will happen

the present state of the relevant constitutional

anytime soon, this argument for an amend-

doctrines, already make court-ordered, nation-

ment fails. In addition, proponents argue that

wide same-sex marriage unlikely for the fore-

whatever role the courts may play, a single

seeable future. Therefore, an amendment ban-

national policy on the matter is necessary to

ning same-sex marriage is a solution in search

prevent the confusion and disruption that

of a problem. Second, a constitutional amend-

would attend divergent state outcomes. Since

ment defining marriage would be a radical

the legal complications arising from having

intrusion on the nation's founding commit-

different states recognize different relation-

ment to federalism in an area traditionally

ships as marriages would be no greater than

reserved for state regulation, family law. There

they have been throughout our history, during

has been no showing that federalism has been

which divergent state policies on family law

unworkable in the area of family law. Third, a

and other important matters have been the

constitutional amendment banning same-sex

norm, this argument also fails. The policy

marriage would be an unprecedented form of

debate between the contending sides should

amendment, cutting short an ongoing nation-

continue without one side playing the trump

al debate over what privileges and benefits, if

card of an amendment.

any, ought to be conferred on same-sex cou-

This paper does not make an argument for

same-sex marriage on policy grounds.3 The

ples and preventing democratic processes

from recognizing more individual rights.

argument here is directed entirely to whether a

2