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Members of Congress have proposed a constitu-tional amendment preventing states from recogniz-ing same-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 view is that the policy debate on same-sex marriageshould proceed in the 50 states, without being cutoff by a single national policy imposed from Wash-ington and enshrined in the Constitution. A person who opposes same-sex marriage onpolicy grounds can and should also oppose a con-stitutional amendment foreclosing it, on groundsof federalism, confidence that opponents will pre- vail without an amendment, or a belief that pub-lic policy issues should only rarely be determinedat the constitutional level.There are four main arguments against theFMA. First, a constitutional amendment is unnec-essary because federal and state laws, combinedwith the present state of the relevant constitution-al doctrines, already make court-ordered nation-wide same-sex marriage unlikely for the foresee-able future. An amendment banning same-sexmarriage is a solution in search of a problem.Second, a constitutional amendment defin-ing marriage would be a radical intrusion on thenation’s founding commitment to federalism inan area traditionally reserved for state regula-tion, family law. There has been no showing thatfederalism has been unworkable in the area of family 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 recog-nizing more individual rights.Fourth, the amendment as proposed is consti-tutional overkill that reaches well beyond the statedconcerns of its proponents, foreclosing not justcourts but also state legislatures from recognizingsame-sex marriages and perhaps other forms of legal support for same-sex relationships. Whateverone thinks of same-sex marriage as a matter of pol-icy, 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.
The Federal Marriage Amendment 
Unnecessary, Anti-Federalist, and Anti-Democratic
by Dale Carpenter
_____________________________________________________________________________________________________
 Dale Carpenter is associate professor of law at the University of Minnesota Law School.
Executive Summary 
No. 570June 1, 2006
� 
 
Introduction
Members of Congress have proposed a fed-eral constitutional amendment preventingstates from recognizing same-sex marriages. As of now, a nationwide policy debate is underway on the merits of providing full maritalrecognition to gay couples. That debate is stillin its infancy and is proceeding in a variety of ways with divergent policy choices being con-sidered in the states. It should not be cut off by a constitutional amendment that would sub-stantially delay or
 permanently foreclose
whatmight otherwise turn out to be a valuablesocial reform. Such an amendment was notneeded even two years ago when Congress lastconsidered it, and the passage of time has fur-ther weakened the case for an amendment.Pointing to litigation pressing for therecognition of state and federal constitutionalrights to same-sex marriage, especially theMassachusetts Supreme Judicial Court’s deci-sion in
Goodridge v. Department of Public Health
,
1
and to the actions of various local officialsaround the country recognizing gay mar-riages,
2
proponents of the Federal Marriage Amendment have claimed that an amend-ment is needed immediately to prevent same-sex marriages from being forced on the nation.Since there is little likelihood that will happenanytime soon, this argument for an amend-ment fails. In addition, proponents argue thatwhatever role the courts may play, a singlenational policy on the matter is necessary toprevent the confusion and disruption thatwould attend divergent state outcomes. Sincethe legal complications arising from havingdifferent states recognize different relation-ships as marriages would be no greater thanthey have been throughout our history, duringwhich divergent state policies on family law and other important matters have been thenorm, this argument also fails. The policy debate between the contending sides shouldcontinue without one side playing the trumpcard of an amendment.This paper does not make an argument forsame-sex marriage on policy grounds.
3
Theargument here is directed entirely to whether a constitutional amendment should dispose of the matter. Whether states
 should
recognizesame-sex marriages is one question. Whetherthey should be
 permitted
to recognize same-sexmarriages is a separate question. A person whoopposes same-sex marriage on policy groundscan and should also oppose a constitutionalamendment foreclosing it.
4
 An opponent of gay marriage might oppose a constitutionalamendment for any one or combination of the following reasons: (1) he believes that fed-eralism—the traditional, decentralized struc-ture of American government—is the bestanswer to most disputes about public policy;(2) he is confident that his opposition will pre- vail without the need for a constitutionalamendment; (3) although he opposes gay marriage, he is open to subsequent persuasionby arguments and evidence against his current view and wants public policy to remain flexi-ble enough to adjust over time. Not every pol-icy position one holds must be imposedforevermore on the whole nation by constitu-tionalizing it. For the same reasons, one who isunsure how he feels about same-sex marriagecan and should oppose a constitutionalamendment foreclosing it.To summarize the four main points: First,a constitutional amendment is unnecessary because federal and state laws, combined withthe present state of the relevant constitutionaldoctrines, already make court-ordered, nation-wide same-sex marriage unlikely for the fore-seeable future. Therefore, an amendment ban-ning same-sex marriage is a solution in searchof a problem. Second, a constitutional amend-ment defining marriage would be a radicalintrusion on the nation’s founding commit-ment to federalism in an area traditionally reserved for state regulation, family law. Therehas been no showing that federalism has beenunworkable in the area of family law. Third, a constitutional amendment banning same-sexmarriage would be an unprecedented form of amendment, cutting short an ongoing nation-al debate over what privileges and benefits, if any, ought to be conferred on same-sex cou-ples and preventing democratic processesfrom recognizing more individual rights.
2
A constitutionalamendmentdefining marriagewould be a radicalintrusion on thenation’s foundingcommitment tofederalism.
 
Fourth, the amendment as proposed is consti-tutional overkill that reaches well beyond thestated concerns of its proponents, foreclosingnot just courts but also state legislatures fromrecognizing same-sex marriages and perhapsother forms of legal support for same-sex rela-tionships. Whatever one thinks of same-sexmarriage as a matter of policy, no person whocares about our Constitution and public poli-cy should support this unnecessary, radical,unprecedented, and overly broad departurefrom the nation’s traditions and history.
The Proposed FederalMarriage Amendment
Several versions of a federal marriageamendment are being considered in Congress. All of the versions would, at a minimum, for-bid states to recognize same-sex marriages.One version of the amendment was intro-duced in the House of Representatives in 2004by Rep. Marilyn Musgrave (R-CO) as H.J. Res.56. The Musgrave version would amend theConstitution as follows:Marriage in the United States shall con-sist only of the union of a man and a woman. Neither this Constitution or[sic] the constitution of any State, norstate or federal law, shall be construedto require that marital status or thelegal incidents thereof be conferredupon unmarried couples or groups.In the Senate, an amendment with some-what different language has been introducedas S.J. Res. 1. The Senate version would amendthe Constitution as follows:Marriage in the United States shallconsist only of the union of a man anda woman. Neither this Constitution,nor the constitution of any State, shallbe construed to require that marriageor the legal incidents thereof be con-ferred upon any union other than theunion of a man and a woman. A third version of the amendment wouldconsist solely of the first sentence of the abovetwo amendments: “Marriage in the UnitedStates shall consist only of the union of a manand a woman.”The second sentences of the Senate versionand the Musgrave version are similar but differin three substantive respects. First, the Senate version drops the Musgrave version’s referenceto “state or federal law.” Second, the Senate ver-sion replaces the Musgrave version’s referenceto “marital status” with “marriage.” Third, theSenate version replaces the Musgrave version’sreference to “unmarried couples or groups”with “any union other than the union of oneman and one woman.” Although in somerespects the Senate version appears narrowerthan the Musgrave version, its practical effectmay be nearly as sweeping.On July 15, 2004, the Senate rejected anattempt to invoke cloture to proceed with con-sideration of the Senate version of the FMA. The vote was 48 in favor of cloture and 50 opposed.
5
Under Senate rules, cloture would have required60 votes. The FMA likewise fell short of thesupermajority needed for passage in the Houseof Representatives on September 30, 2004, with227 members in favor, 186 against, and 20 not voting.
6
Ratification of an amendment underthe usual procedure would require a two-thirds vote in the Senate and the House, followed by approval from three-fourths of the states.
7
Except where necessary to distinguishamong the various amendments, I will usethe acronym FMA to refer to the amend-ments generally.
A Federal Amendment IsUnnecessary 
 A constitutional amendment banningsame-sex marriage is unnecessary, even if oneopposes same-sex marriage as a matter of policy.
The Alleged Threat from Courts andLocal Officials
 Advocates of the proposed FMA claim it is
3
A constitutionalamendmentbanning same-sex marriage isunnecessary, evenif one opposessame-sexmarriage as amatter of policy.
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