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It is possible that a federal district court

Because the law was so overly broad, the narrow

could declare DOMA unconstitutional or hold

justifications the state offered could not sustain

a state ban on same-sex marriage unconstitu-

it, leaving only impermissible animus as a moti-

vating force behind the law.45 Evans was one of

tional. Such a ruling would be of no conse-

quence, however, since it would be immediate-

the few times in the Court's history when a law

ly reviewed by the governing appellate court. It

failed the lowest level of constitutional scrutiny,

is also possible, though very unlikely for the

the rational basis test.

foreseeable future, that such future litigants

Unless the Court were to apply strict

could find a panel of an appellate court some-

scrutiny to laws that fence out gay couples

where that would declare DOMA unconstitu-

from marriage, a step neither it nor any feder-

tional or hold a state ban on same-sex marriage

al court has taken, states will need to show

unconstitutional. Such a ruling would also be

only a rational basis for their marriage laws.

of little consequence, however, since it would

This test requires the state to show only that

be reviewed en banc or by the Supreme Court,

the law is rationally related to a legitimate

or both. As noted above, given the present state

governmental end. That is not a difficult task.

of the relevant constitutional doctrines and the

Thus, there is little reason to believe a court

usual reluctance of the Supreme Court to

would strike down all state marriage laws or

The Constitution

oppose a large national consensus on an

DOMA on equal protection grounds, at least

is the nation's

important social issue, it is extremely unlikely

given the present state of that doctrine. Cer-

that the Court would allow such a hypothetical

tainly, no court has yet done so.

founding blue-

future appellate court ruling to stand. The like-

print. We should

lihood is that the Supreme Court would use

The Exaggerated Fear of a Threat from the

not trifle with it.

one of a number of the procedural techniques

Courts

available to it to dismiss the claim, without

Aside from the merits of a constitutional

even reaching the merits of the issue.48

claim for same-sex marriage, it is unlikely for

practical and historical reasons that the Court

In short, the fear of court-imposed, nation-

would impose it on the nation in the near

wide gay marriage is exaggerated and hypo-

future. The Court rarely strays far or long from

thetical. To amend the Constitution now to

a national consensus on any given issue.46

prevent it would be to do so on the basis of

fear of a future, hypothetical adverse decision

When it does, it risks its own institutional

by the Supreme Court. Proponents of the

standing and credibility. Lawrence is no excep-

FMA are asking the nation to amend the

tion to this rule since sodomy laws existed only

Constitution preemptively, something we

in a minority of states (13 of 50), were rarely

have never before done.

enforced, and were opposed by most Americans

The Constitution is the nation's founding

at the time the Court struck them down.

blueprint. We should not trifle with it. There

By contrast, only one state has recognized

have been more than 11,000 proposed consti-

same-sex marriages, and laws limiting mar-

tutional amendments, all supported by advo-

riage to opposite-sex couples enjoy broad pop-

cates who no doubt sincerely believed that their

ular support in most states and nationwide. If

causes required immediate constitutional sup-

the Court were to order same-sex marriage,

port in order to save the Republic. Yet leaving

whether under the FFCC or a substantive con-

out the extraordinary founding period that

stitutional doctrine, it would be opposing

produced the 10 amendments known as the

almost the entire country. I cannot think of

Bill of Rights and the extraordinary post­Civil

another time the Court has done that in mod-

War period that produced three amendments,

ern times, with the instructive and chastening

exception of Roe v. Wade.47 The stark fact

we have amended the Constitution only 14

times in more than two centuries. In contrast to

remains that no federal court, at any level, has

the present move to amend the Constitution in

ordered the recognition of same-sex marriages

anticipation of possible adverse court rulings

or declared DOMA unconstitutional.

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