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Fein wrote in the Washington Times:

Second, an amendment would bar the peo-

ple of all the states, even those states that had

The amendment would enervate self-

approved the amendment, from ever reconsid-

government. . . . Simple majority rule

ering the issue democratically (except through

fluctuating in accord with popular

another federal constitutional amendment).

opinion is the strong presumption of

Under the present system, states may opt for

democracies. But that presumption and

one policy choice now but are free to revise

its purposes would be defeated by the

their own choice at a later date on the basis of

constitutional rigidity and finality of a

new knowledge, arguments, and experience.

no-same-sex-marriage amendment.62

The FMA would preclude that normal demo-

cratic process, binding the people of the states

forever to an earlier decision made by an earli-

Of course, in certain areas democratic

er generation lacking their experience.

experimentation should be limited, by consti-

Finally, the proposed FMA would be "pecu-

tutional provisions if necessary. States should

liarly" anti-democratic, that is, anti-democrat-

not be free, for example, to experiment with

ic in a way that no other amendment has ever

racial segregation or with denying women the

been. It would be the first time we amended

right to vote. But such limitations on the

the Constitution to limit states' ability to

democratic process should be imposed, and

decide democratically to expand rights and to

historically have been imposed, only to vindi-

include more people in the fabric of national

cate individual rights, not to deny individual

life. Up to now, the constitutional constraints

rights. As discussed above, limitations on

on democratic processes have been designed

democratic decisionmaking have heretofore

to limit states' ability to diminish rights and to

been imposed only to broaden the stake that

exclude people from national life. Rather than

individuals and groups have in our nation, not

setting a constitutional floor on rights and inclu-

to fence them out.

sion, for the first time in our history the FMA

Moreover, although proponents of the

would set a constitutional ceiling on them.61

FMA are no doubt sincere in their defense of

traditional marriage, the FMA may be largely a

The FMA would thus be a significant and

cynical way to defend it. As the Senate leaders

needless departure from our legal history

supporting an amendment have acknowl-

and traditions. A constitutional amendment

edged, popular opposition to gay marriage is

would have the effect of allowing the people

gradually waning.63 There was a "stronger

of some states to order the people of other

states not to experiment with their own state

societal consensus [against same-sex mar-

family law. The people of the states, tradi-

riage] at the time" Congress passed DOMA in

A constitutional

1996 than there is today.64 If present trends in

tionally free to act either through popular

initiative or through their own state legisla-

popular opinion continue, that consensus will

amendment

tures, would lose their right to consider the

be even weaker in the future. In general, time

would have the

issue of same-sex marriage (and, as a practical

has not been on the side of those who oppose

effect of allowing

matter, perhaps even domestic partnerships

equal civil rights for gays. The FMA appears to

or civil unions). Their family law would be

be an effort by opponents of same-sex mar-

the people of

frozen by the will of people in other states or,

riage to set in constitutional cement their cur-

some states to

alternatively, by the will of people in their

rent advantage in popular opinion before they

own state from an earlier generation.

lose that advantage. Though they claim pri-

order the people

Further, domestic partnership laws and civil

marily to fear the courts, and not popular

of other states

unions in states and localities across the coun-

opinion, it appears to be the people them-

not to experiment

try might be effectively repealed. Democratic

selves they fear. The people simply cannot be

outcomes would be reversed. Public debate

trusted, on this view, to adhere to the "right"

with their own

through normal democratic processes would

position in the future. To the extent such con-

state family law.

be cut short. As conservative legal scholar Bruce

siderations lie behind the drive to pass a mar-

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