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The Federal Marriage Amendment: Unnecessary, Anti-Federalist, and Anti-Democratic

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Publication Date: June 2006

Publisher(s): Cato Institute

Author(s): Dale Carpenter

Topic: Law and ethics (Family law)

Type: Report

Abstract:

Members of Congress have proposed a constitutional amendment preventing states from recognizing same-sex marriages. Proponents of the Federal Marriage Amendment claim that an amendment is needed immediately to prevent same-sex marriages from being forced on the nation. That fear is even more unfounded today than it was in 2004, when Congress last considered the FMA. The better view is that the policy debate on same-sex marriage should proceed in the 50 states, without being cut off by a single national policy imposed from Washington and enshrined in the Constitution.

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.

There are four main arguments against the FMA. First, a constitutional amendment is unnecessary because federal and state laws, combined with the present state of the relevant constitutional doctrines, already make court-ordered nationwide same-sex marriage unlikely for the foreseeable future. An amendment banning same-sex marriage is a solution in search of a problem.

Second, a constitutional amendment defining marriage would be a radical intrusion on the nation's founding commitment to federalism in an area traditionally reserved for state regulation, family law. There has been no showing that federalism has been unworkable in the area of family law.

Third, a constitutional amendment banning same-sex marriage would be an unprecedented form of amendment, cutting short an ongoing national debate over what privileges and benefits, if any, ought to be conferred on same-sex couples and preventing democratic processes from recognizing more individual rights.