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The FMA is

The Overbreadth of All Proposed

riage amendment, the FMA reflects a deeply

Versions of the FMA

anti-democratic impulse, a fundamental dis-

constitutional

All proposed versions of the FMA would

trust of normal political processes.

overkill.

forever prohibit the democratic recognition of

same-sex marriages. Since marriage shall con-

The Proposed Federal

sist "only of the union of a man and a

Amendment Is Overly

woman," no state legislature will be free to

authorize same-sex marriages. Similarly, the

Broad

people of a state will be prohibited from rec-

ognizing same-sex marriages through initia-

The FMA is constitutional overkill. If the

tive. Further, no state could amend its own

fear prompting serious consideration of the

constitution to provide for the recognition of

FMA is that a state court decision in favor of

same-sex marriages. Normal democratic poli-

same-sex marriage might be leveraged onto

tics would simply be shut down on this issue.

other states via Full Faith and Credit Clause

All proposed versions of the FMA would be

principles, the FMA is an overreaction. As dis-

unprecedented intrusions on the historic

cussed above, it would do far more than pro-

power of the states to define marriage. They

hibit such impositions via the FFCC. If the

would also intrude on the historic power of

fear is that courts will impose same-sex mar-

state courts to interpret their own state con-

riage on the country through the Equal

stitutions. Those powers have been basic com-

Protection Clause or the Due Process Clause,

ponents of our system of federalism since the

that fear is exaggerated and hypothetical.

founding period. Nothing in any of the pro-

But even if I have been wrong about the

posed versions eliminates those affronts to

likelihood of a court-led marriage revolution,

federalism.

the FMA is not a carefully tailored response to

If the fear prompting the push for an

that problem. A much narrower amendment,

amendment is that judges will require states

dealing only with courts' role in deciding the

to recognize same-sex marriages, all of the pro-

particular question of same-sex marriage,

posed versions of the FMA are overly broad

could be proposed. Even such a narrower

responses to that concern. As noted above,

amendment would be unnecessary to prevent

they would not only prevent judges from order-

the imposition of court-ordered nationwide

ing the recognition of same-sex marriages,

same-sex marriage for the foreseeable future.

they would also prevent legislatures and popular

But at least it would not amount, as the FMA

majorities from authorizing them.

does, to killing a gnat with a sledgehammer.

All of the proposed versions of the FMA

The Senate version of the FMA, which has

might also call into question legislatively enact-

been promoted as a narrower amendment

ed civil unions and broad domestic partner-

allowing state legislatures to recognize civil

ship laws. Civil unions, which (in Vermont and

unions and domestic partnerships, corrects

Connecticut) grant to same-sex couples all of

none of the problems of the Musgrave ver-

the privileges and rights of marriage under a

sion on which it is based. Like the Musgrave

different name, might be prohibited by all

version, it is unnecessary, is an unprecedent-

pending versions of the FMA, which strictly

ed intrusion on our nation's historic com-

limit marriage to opposite-sex couples. Once

mitment to federalism, is unlike any other

the amendment in any of its forms is ratified,

constitutional amendment in that it limits

opponents of civil unions can be expected to

the ability of the democratic process to

argue that legislatures cannot circumvent the

expand individual rights, and is overly broad

substance of the amendment by giving same-

as a remedy for its proponents' stated con-

sex couples everything marriage confers under

cerns about judicial activism. I laid out the

a different title. Consider an analogy. If a state

arguments supporting each of these points

were forbidden to maintain a "navy," it could

above and will not repeat them in detail here.

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