Amending the Constitution to ban same-sex marriage flies in the face of federalism
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WASHINGTON - Next week the Senate is expected to vote on the proposed Federal Marriage Amendment (FMA), which would prohibit federal recognition of gay marriages even when approved by a state government. According to a study released today from the Cato Institute, regardless of how one feels about same-sex marriage, a constitutional amendment is not the answer.
In “The Federal Marriage Amendment: Unnecessary, Anti-federalist, and Anti-democratic,” Dale Carpenter, an associate professor at the University of Minnesota Law School, argues that the FMA is an unprecedented intrusion on our nation’s historic commitment to federalism and is unlike any other constitutional amendment in that it limits the ability of the democratic process to expand individual rights.
“No person who cares about our Constitution and public policy should support this unnecessary and overly broad departure from the nation’s tradition and history,” says Carpenter.
He argues that the debate over same-sex marriage policy should remain in the states and that the federal government should not override state marriage laws. “A person who opposes same-sex marriage on policy grounds can and should also oppose a constitutional amendment foreclosing it on grounds of federalism, confidence that opponents will prevail without an amendment, or a belief that public policy issues should only rarely be determined at the constitutional level,” the author writes.
Leaving out the founding period that produced the Bill of Rights and the extraordinary post-Civil War period that produced three amendments, the Constitution has only been amended 14 times in more than two centuries. Carpenter writes: “[The Constitution] should be altered only to deal with some clear and present problem that cannot be addressed in any other way. We are nowhere near that point on the subject of same-sex marriage. The ‘problem’ of nationwide same-sex marriage is neither clear nor present. At the very least, we should wait until an issue calling for a national solution actually arises before we address it by changing the Constitution.”
Carpenter concludes: “Never before in the history of the country have we amended the Constitution in response to a threatened (or actual) state court decision. Never before have we amended the Constitution to preempt an anticipated federal court ruling. Never before have we adopted a constitutional amendment to limit the states’ ability to control their own family law. Never before have we dictated to states what their own state laws and state constitutions mean. Never before have we amended the Constitution to restrict the ability of the democratic process to expand individual rights. This is no time to start.”