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nized in only 1 of the 50 states as the result of

needed to prevent activist state and federal

court order. In any event, as we shall see, state

courts, at the request of gay-rights advocates,

court activism and disregard of state defini-

from imposing same-sex marriage on the

tions of marriage by local officials are phe-

whole country. The Senate Republican Policy

nomena the states are well equipped to han-

Committee, in a policy position paper titled

dle without federal interference. Even where

"The Threat to Marriage from the Courts,"

a state court orders same-sex marriage in its

has used this fear to urge the Senate's consid-

jurisdiction, that should be a matter for a

eration of an amendment. "Activist lawyers

state to resolve internally, through its own

and their allies in the legal academy have

governmental and constitutional processes,

devised a strategy to override public opinion

as the states have so far done. There is no par-

and force same-sex marriage on society

ticular reason to believe New Yorkers will

through pliant, activist courts," warned the

policy committee in the summer of 2003.8

think of judicial "activism" the same way

Iowans do. At the federal level, as we shall see,

In 2004 President George W. Bush used the

given the present state of the relevant consti-

specter of judicial activism and lawlessness on

tutional doctrines, courts are unlikely to

the part of local officials to justify his support

impose gay marriage on the entire nation for

of a federal amendment. In the aftermath of

at least the foreseeable future. Certainly, no

the Massachusetts high court decision and the

federal court has yet done so. Warnings

sporadic actions of local officials, including

about judicial activism on this issue, while

San Francisco mayor Gavin Newsom, recog-

fashionable, are premature and overblown.

nizing gay marriages, Bush announced his

Forty-five states have explicitly declared

support for a constitutional amendment.

same-sex marriages contrary to their own

"After more than two centuries of American

public policy, barring recognition of same-sex

jurisprudence and millennia of human experi-

marriages under state statutes or state consti-

ence, a few judges and local authorities are pre-

tutions.10 The 1996 Defense of Marriage Act

suming to change the most fundamental

institution of civilization," Bush said on

bars recognition of such marriages for federal

February 24, 2004.9 "If we're to prevent the

purposes.11 It is unlikely that courts will

meaning of marriage from being changed for-

impose immediate, nationwide gay marriage

ever, our nation must enact a constitutional

contrary to this powerfully expressed legisla-

amendment to protect marriage in America."

tive and popular will.

Bush also warned of unspecified "serious con-

Neither federal nor state courts are likely to

sequences throughout the country" if a city or

order same-sex marriage under the traditional

state recognized gay marriages even in its own

interpretation of the Constitution's Full Faith

jurisdiction.

and Credit Clause. Nor, for the foreseeable

Thus, argue proponents of an amendment,

future, are courts likely to mandate same-sex

the matter will be decided at the national level

marriage under substantive federal constitu-

whether we enact an amendment or not:

tional doctrines, such as the Fourteenth

either activist courts and local officials will

Amendment's Due Process Clause or the

foist same-sex marriage on an unwilling

Equal Protection Clause. Supporters of a fed-

nation, they claim, or the people will "protect"

eral amendment have made much of the fact

marriage by enacting a constitutional amend-

that same-sex marriage lawsuits are pending

ment establishing the definition of marriage

in several states. Anyone with a printer and

as the union of one man and one woman.

enough money for a filing fee can file a law-

The "threat"

The "threat" from courts is more imag-

suit, of course, and advocates of gay marriage

are likely to continue to do so.12 But winning

ined than real. At the state level, while advo-

from courts is

cates of gay marriage may win some battles in

is a very different matter. This paper will now

more imagined

state court litigation, they will lose many oth-

address each of the above points in greater

detail.13

than real.

ers. So far, same-sex marriage has been recog-

4