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rights. But neither of these important excep-

as a federal marriage amendment would do,

tions to federalism applies to an amendment

starts the debate with a strike against it.

banning same-sex marriage.

It is true that there have been limited histori-

Conservatives, including many who publicly

cal exceptions to the general rule that states con-

oppose gay marriage as a matter of public poli-

trol their own family law, including the defini-

cy, have been especially troubled by the anti-fed-

tion of marriage. State power to define marriage

eralism consequences of a federal marriage

is not plenary; there are a few narrowly confined

amendment. Vice President Cheney, publicly

constitutional limits. The Supreme Court decid-

ed in Loving v. Virginia,54 for example, that a state

disagreeing with President Bush, has argued

that states should decide the issue of same-sex

anti-miscegenation law was unconstitutional.

marriage for themselves.56 Many other promi-

That decision was grounded in two parts of the

Fourteenth Amendment that explicitly restrain

nent American conservatives--including Bob

Barr,57 former representative Chris Cox (R-

state power: the fundamental right to marry

CA),58 and legal affairs writer Bruce Fein59--

protected by the Due Process Clause and the

anti-racist principles of the Equal Protection

oppose the FMA on federalism grounds. Under

Clause. The decision altered state law to uphold

federalism principles, this is not an area where

individual rights and to make the institution of

federal policy needs to intrude.

Conservatives,

marriage more inclusive, not to derogate indi-

including many

vidual rights and to make marriage more exclu-

A Federal Amendment

sive. The decision was thus distinct in substance

who publicly

and spirit from the FMA.55

Would Be Unusually

oppose gay

There has been only one congressional

Anti-Democratic

marriage as a

limit placed on the ability of a state to define

marriage for itself. In the 19th century,

A constitutional amendment would be

matter of public

Congress required Utah and a few other states

peculiarly anti-democratic, the first of its kind

policy, have been

to relinquish polygamy as a condition for

in the nation's history. At first, this claim is

entering the union. Yet in so doing, Congress

counterintuitive. To be adopted using the

especially

was exercising its existing constitutional

usual procedure, an amendment would be

troubled by the

power to admit new states, an issue not pre-

"superdemocratic" in the sense that it requires

anti-federalism

sent in the FMA context. Further, Congress

two-thirds approval of both houses of

did not attempt to limit other states' ability to

Congress and the approval of three-fourths of

consequences of a

recognize plural marriages. It was not impos-

the states. But even though an amendment

federal marriage

ing a single definition of marriage on all states

requires a supermajority in Congress and

amendment.

via the Constitution. The fact that there has

among the states, it has three anti-democratic

been only one such very limited congressional

effects that should be considered. The first

attempt to override a state's definition of mar-

two are common to all constitutional amend-

riage in more than 200 years suggests how

ments; the third is peculiar to the FMA. The

deeply rooted respect for state power in this

anti-democratic effects of all constitutional

area is. In short, there is simply no precedent

amendments are reason enough to be very

for amending the Constitution to intrude on

cautious in adopting them, but the FMA mag-

states' structural constitutional power to

nifies democratic concerns.

determine their own definitions of marriage.

First, any amendment is anti-democratic as

Federalism is not an inexorable command.

to the states that refuse to ratify it. There could

First, Congress may set national policy on

be as many as 12 states, perhaps among them

matters within its constitutional powers, even

our most populous, such as California, New

at the expense of states that dislike the nation-

York, New Jersey, and Massachusetts, that

al policy. Second, the federal government,

would be stripped by the actions of the Congress

including all three of its branches, has a role in

and the 38 ratifying states of their traditional

power to decide the issue democratically.60

ensuring that the states respect constitutional

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