must have latitude to do as their citizens see fit.").
Gay Marriage, and the Constitution," Widener Law
Journal 13, 2004: 799.
58. Christopher Cox, "The Marriage Amendment
Is a Terrible Idea," Wall Street Journal, September
47. 410 U.S. 113 (1973).
28, 2004, p. A22 ("For Republicans, who believe in
48. An example of this technical maneuver to avoid
federalism, the FMA is an uncomfortable fit.
consideration of a thorny cultural issue is the
Restraint in the allocation of authority to the
Supreme Court's recent decision to reject a noncus-
national government from the states is funda-
todial atheist father's claim that it is unconstitution-
mental to our Constitution.").
al for public schools to lead children in reciting the
59. Bruce Fein, "Constitutional Rashness," Wash-
phrase "under God" in the Pledge of Allegiance. Elk
ington Times, September 2, 2003, p. A14.
Grove Unified School District v. Newdow, 124 S. Ct. 2301
(2004) (dismissing claim on the ground that the
60. See Larry A. Ribstein, "A Standard Form Approach
father lacked standing). Justice Stevens's majority
to Same Sex Marriage," http://home.law.uicu.edu/~
opinion declared, "The command to guard zealously
ribstein/marriage.pdf ("States should be allowed to
and exercise rarely our power to make constitutional
experiment with alternative domestic relationship
pronouncements requires strictest adherence when
laws, including laws that bar same sex marriage and
matters of great national significance are at stake."
marriage-like relationships. Before such experimenta-
Emphasis added. This quote seems tailor-made to
tion has been done, we risk blindly either foreclosing
justify Supreme Court abstention should the gay-
beneficial progress in human relationships, or endors-
marriage issue even reach it in the near future.
ing a risky future with unknown consequences.").
49. James Madison, Federalist no. 49, in The Federalist
61. Perhaps the only exception to this rights-affirm-
Papers, ed. Clinton Rossiter (New York: New Ameri-
ing constitutional tradition was the Eighteenth
can Library, Signet Classics, 1961), p. 311.
Amendment, the Prohibition amendment, ratified
in 1919. The nation soon regretted that exception
50. James Madison, Federalist no. 45, in The
and just 14 years later it became the only amend-
Federalist Papers, p. 289.
ment to be repealed; it was repealed by the Twenty-
51. See, e.g., United States v. Lopez, 514 U.S. 549,
First Amendment.
56164 (1995).
62. Fein, p. A14.
52. The California secretary of state provides infor-
63. Compare Senate Republican Policy Committee,
mation and registration materials on its website at
"The Threat to Marriage from the Courts," p. 2, n. 6
http://www.ss.ca.gov/dpregistry/. The domestic
(citing poll showing opposition to same-sex mar-
partnership program is also available to opposite-
riage standing at 68 percent in 1996), and ibid., n. 5
sex couples if one partner is 62 years or older.
(citing polls showing opposition to same-sex mar-
53. Public Acts 2005, No. 05-10 (Connecticut).
riage standing at between 53 percent and 62 percent
in 2003).
54. Loving, 380 U.S. 1.
64. Ibid., p. 2.
55. The Supreme Court also acted to expand, but
not to constrict, marriage in the states by invalidat-
65. The Constitution forbids states to "keep
ing state laws that prohibited inmates from marry-
Troops, or Ships of War in time of Peace. . . . " U.S.
ing (Turner v. Safley, 482 U.S. 78, 9799 (1987)) and
Const. art I, sec. 10, cl. 3; see also Alan Cooperman,
denied marriage to parents in arrears on their
"Little Consensus on Marriage Amendment: Even
child-support obligations (Zablocki v. Redhail, 434
Authors Disagree on the Meaning of Its Text,"
U.S. 374, 38690 (1978)). These cases, like Loving,
Washington Post, February 14, 2004, p. A1. Professors
are limited intrusions on state marriage restric-
Robert P. George of Princeton and Gerard Bradley
tions. By contrast, the FMA is expansive, imposing
of Notre Dame Law School, proponents of the
a single definition on all states.
FMA, have made this analogy to argue that the first
sentence of the FMA would preclude the legislative
56. Lisa Stein, "Cheney's Choice," U.S. News &
or judicial creation of a civil union equivalent to
World Report, September 6, 2004, p. 14.
marriage. Ramesh Ponnuru, "Times vs. Sullivan,"
National Review Online, February 9, 2004.
57. Barr, p. A23 ("Marriage is a quintessential state
issue. . . . Make no mistake, I do not support same-
66. See Cooperman.
sex marriages. But I am also a firm believer that the
Constitution is no place for forcing social policies
67. Senate Republican Policy Committee, "Why a
on the states, especially in this case, where states
Marriage Amendment Is Necessary," p. 15.
19