The Federal Marriage Amendment: Unnecessary, Anti‐​Federalist, and Anti‐​Democratic

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Members of Congress have proposed a constitutionalamendment preventing states from recognizingsame-sex marriages. Proponents of the FederalMarriage Amendment claim that an amendment isneeded immediately to prevent same-sex marriagesfrom being forced on the nation. That fear is evenmore unfounded today than it was in 2004, whenCongress last considered the FMA. The better viewis that the policy debate on same-sex marriageshould proceed in the 50 states, without being cutoff by a single national policy imposed from Washingtonand enshrined in the Constitution.

A person who opposes same-sex marriage onpolicy grounds can and should also oppose a constitutionalamendment foreclosing it, on groundsof federalism, confidence that opponents will prevailwithout an amendment, or a belief that publicpolicy issues should only rarely be determinedat the constitutional level.

There are four main arguments against theFMA. First, a constitutional amendment is unnecessarybecause federal and state laws, combinedwith the present state of the relevant constitutionaldoctrines, already make court-ordered nationwidesame-sex marriage unlikely for the foreseeablefuture. An amendment banning same-sexmarriage is a solution in search of a problem.

Second, a constitutional amendment definingmarriage would be a radical intrusion on thenation's founding commitment to federalism inan area traditionally reserved for state regulation,family law. There has been no showing thatfederalism has been unworkable in the area offamily law.

Third, a constitutional amendment banningsame-sex marriage would be an unprecedentedform of amendment, cutting short an ongoingnational debate over what privileges and benefits,if any, ought to be conferred on same-sex couplesand preventing democratic processes from recognizingmore individual rights.

Fourth, the amendment as proposed is constitutionaloverkill that reaches well beyond the statedconcerns of its proponents, foreclosing not justcourts but also state legislatures from recognizingsame-sex marriages and perhaps other forms oflegal support for same-sex relationships. Whateverone thinks of same-sex marriage as a matter of policy,no person who cares about our Constitutionand public policy should support this unnecessary,radical, unprecedented, and overly broad departurefrom the nation's traditions and history.

Dale Carpenter

Dale Carpenter is associate professor of law at the University of Minnesota Law School.