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states. The previous summer, the Supreme

domestic partnerships than does its parallel in

Court had decided Lawrence v. Texas, which

the Musgrave version. But the new language

contained sweeping language about the rights

by no means solves the problem.

and dignity of homosexuals. The previous fall,

The second sentence of the Senate version

the highest court of Massachusetts had

provides that neither the federal constitution

ordered that state to start recognizing the first

nor any state constitution "shall be con-

gay marriages in the country. Local officials in

strued to require that" the "legal incidents"

four different states had defied state law to per-

of marriage be given to same-sex couples.

form same-sex marriages. Thousands of gay

Under this language, any legislatively created

couples in San Francisco lined up to get "mar-

domestic partnership law or civil union law

ried" under the order of the city's mayor. The

that confers marriagelike benefits on same-

issue of gay marriage dominated the headlines

sex couples may be effectively immune from

of newspapers and the talk shows of television

state and federal constitutional scrutiny. For

and radio. It might have seemed to some that a

example, a civil union or domestic partner-

dam was about to break, flooding the country

ship statute might itself make invidious or

with gay marriages and wreaking havoc on the

irrational distinctions among same-sex cou-

laws and traditions of a country overwhelm-

ples by giving some same-sex couples more

ingly opposed to the practice.

benefits than others or by shutting some

We now know, with two years' hindsight,

same-sex couples out of the statute altogeth-

that those fears were greatly exaggerated.

er. Or a civil union statute or domestic part-

Lawrence has not opened any floodgates to gay

nership law might impose procedural bur-

marriage. Goodridge has been accepted by a

dens on same-sex couples that violate due

smattering of state trial courts but has been

process guarantees dealing, for example, with

rejected by even more. Local officials acting

rights to notice and a fair hearing.

contrary to state law have been brought to heel

In the case of such a constitutional infirmity,

by their own states, as they always have been.

the Senate version might be interpreted to pre-

Forty-five states, 18 of them by state constitu-

vent courts from correcting the problem by

tional amendment, have erected high barriers

ordering that same-sex couples be given any of

to the recognition of same-sex marriages.

"the legal incidents" of marriage. Under the

DOMA remains the law, and no gay marriage

Senate version, legislatively created civil unions

has been transported from Massachusetts or

or domestic partnerships might thus be effec-

any foreign country to any state that does not

tively immune from state or federal constitu-

want it. What should have been obvious even

tional scrutiny seeking to remedy their unconsti-

in 2004--that same-sex marriage would face a

tutionality by conferring any additional benefits

Never before in

long uphill climb--is patently clear today.

on same-sex couples or by including more same-

With every passing day, the impending doom

sex couples within the coverage of the statute.

the history of the

prophesied by FMA supporters seems more

Thus, under either the Senate or the Musgrave

country have we

far-fetched. There is no pressing urgency to

version, the FMA would effectively be an amend-

deal with the issue through the heavy artillery

ment to the Fifth Amendment's Due Process

amended the

of a federal constitutional amendment.

Clause and the Fourteenth Amendment's Equal

Constitution in

In sum, a federal amendment banning same-

Protection and Due Process Clauses.

response to

sex marriage is not a response to any problem we

currently have. The solemn task of amending

a threatened

Conclusion

the nation's fundamental law should be re-

(or actual) state

served for actual problems. Never before in the

court decision.

history of the country have we amended the

When Congress last considered the FMA in

Constitution in response to a threatened (or

2004, it might have seemed that the country

This is no time

actual) state court decision. Never before have

faced an emergent threat of immediate judicial

to start.

we amended the Constitution to preempt an

action to invalidate the marriage laws of all 50

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