OutRight

by Dale Carpenter

A GOOD DEFENSE

Four points counter the Federal Marriage Amendment

It’s time to start marshaling our arguments against the Federal Marriage Amendment (FMA). The FMA, which has now been introduced in the House of Representatives, would define marriage in the United States as the union of one man and one woman. It would henceforth ban gay marriages (and other forms of legal recognition of gay couples) throughout the country—at least until the amendment could be repealed, something that has happened only once in more than two centuries of constitutional history. Passage of the FMA would set back the cause of gay marriage for perhaps 25–50 years, possibly for the lifetime of most people reading this column.

The theory of the FMA seems to be that the states must be saved from themselves, from their own legislatures, from their own courts, and from their own people, lest they formally recognize gay relationships. Whatever one thinks of same-sex marriage as a matter of policy, no person who cares about our Constitution should support this amendment. It is unnecessary, contrary to the structure of our federal system, anti-democratic in a peculiar way, and a form of overkill.

The central argument against the FMA is that allowing gay marriage would be a good thing, for gays and society. But here are four arguments against the FMA that even an opponent of gay marriage should be able to accept:

First, a constitutional amendment is unnecessary. It is a solution in search of a problem. No state in the union has yet recognized same-sex marriages. Even if and when a state court approved same-sex marriage in its own jurisdiction, that can and should be a matter for a state to resolve internally, through its own governmental processes, as in fact the states have been doing.

Supporters of the FMA argue that the Constitution’s full faith and credit clause might be used to impose gay marriage on the country. That clause requires each state to give “full faith and credit” to the “public acts, records and judicial proceedings” of other states. But this clause has never been interpreted to mean that every state must recognize every marriage performed in every other state. Each state may refuse to recognize a marriage performed in another state if that marriage would violate the state’s public policy. Thirty-seven states have already declared it is their public policy not to recognize same-sex marriages.

It is also unlikely the Supreme Court or the federal appellate courts, for the foreseeable future, would declare a constitutional right to same-sex marriage. Lawrence v. Texas, the recent sodomy decision, does not change this. Lawrence involved the most private of acts (sexual conduct) in the most private of places (the home). By contrast, marriage is a public institution freighted with public meaning and significance. If I gave my first-year constitutional law students an exam question asking them to distinguish Lawrence from a decision favoring same-sex marriage, I am very confident they could do so.

Moreover, if the Court were suddenly to order nationwide same-sex marriage, it would be taking on the entire country, something it almost never does. We should not tamper with the Constitution to deal with hypothetical questions as if it were part of some national law-school classroom.

Second, a constitutional amendment would mark a radical intrusion on federalism. States have traditionally controlled their own family law. The nation’s commitment to this federalism is enshrined in our Constitution’s very structure.

But federalism is not valuable simply as a tradition. It has a practical benefit. It allows the states to experiment with public policies, to determine whether they work. That is happening right now. States are trying a variety of approaches to test whether encouraging stable same-sex unions is, on balance, a good or bad thing.

Repudiating our history, the FMA would prohibit state courts or even state legislatures from authorizing same-sex marriages. It might even prevent state courts from enforcing domestic partnership or civil union laws.

Third, the FMA would be peculiarly anti-democratic. Simple majority rule is the strong presumption of democracies. But, as conservative legal scholar Bruce Fein recently wrote, “that presumption and its purposes would be defeated by the constitutional rigidity and finality of a no-same-sex-marriage amendment.”

While all constitutional amendments constrain democratic politics, the FMA would mark the first time in the nation’s history the Constitution was amended to limit democratic decisions designed to make the states more inclusive and more affirming of individual rights. The FMA reflects a deeply anti-democratic impulse, a fundamental distrust of normal political processes.

Fourth, the FMA is constitutional overkill. It is like hauling out a sledgehammer to kill a gnat. Even if I have been wrong about the imminent likelihood of a court-imposed gay marriage revolution, the FMA is not a carefully tailored response to that problem. A much narrower amendment, dealing only with preserving state’s control on the issue, could be proposed. Even such a narrower amendment, however, would be unnecessary.

In sum, the FMA is not a response to any problem we currently have. 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 adopted a constitutional amendment to limit the states’ ability to control their own family law. 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.

Writing from the conservative end of the political spectrum, Dale Carpenter began his column for OutSmart in 1994, when he lived in Houston. Now residing in Minneapolis, Carpenter is a University of Minnesota Law School professor.

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