For the several years, primarily as a political ploy, the President and Republican Congress, proposed an amendment to the US Constitution to prohibit marriage between people of the same sex - the Federal Marriage Amendment. This article analyzed this proposed amendment in light of the constitutional principles that govern our society, individual rights, federalism, separation of powers, and judicial review. The article concludes that the FMA is itself constitutionally suspect and is more destructive, on balance, of the basic democratic constitutional principles than any amendment previously adopted or proposed. The amendment violates every tenet of constitutional democracy by: (1) expressly limiting the due process and equality interests of a minority group; (2) precluding the Supreme Court from fulfilling its role as the protector of individual rights; and, (3) foreclosing the states from experimenting with progressive laws designed to promote equality within an area uniquely reserved to the state governments.
GW Paper Series
GWU Law School Public Law Research Paper No. 299; GWU Legal Studies Research Paper No. 299
Joan E. Schaffner. The Federal Marriage Amendment: To Protect the Sanctity of Marriage or Destroy Constitutional Democracy?, 54 Am. U. L. Rev. 1487 (2005).