Center for American Progress

Federalism, Democratic Values and the Federal Marriage Amendment
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This morning the Center for American Progress, in partnership with the Cato Institute, welcomed the perspectives of four legal experts on the Federal Marriage Amendment (FMA) up for vote in the Senate this week. The panelists were Dale Carpenter, law professor at the University of Minnesota; Louis Michael Seidman, law professor at Georgetown University; Bruce Fein, former Reagan administration legal aid and current Washington Times columnist; and Mark Agrast, a senior fellow at the Center for American Progress.

Carpenter, who recently released a report for the Cato Institute entitled “The Federal Marriage Amendment: Unnecessary, Anti-Federalist, and Anti-Democratic,” focused on the constitutional issues that FMA raises. He criticized FMA as superfluous, given that state legislatures are already addressing the issue from a variety of perspectives and that current legal structures make it unlikely that same sex marriages will be exported from one state to another.

All the panelists generally agreed that the proposed amendment is poorly conceived and inconsistent with core principles of American democracy. FMA would be the only amendment, aside from the repealed 18th, to limit rather than expand individual rights. Additionally, it threatens federalism by imposing legal interpretations on state legislatures and courts, inhibiting the creativity of states in formulating policy and limiting states’ ability to be responsive to the desires of their citizens. Social policy, and family law in particular, has changed significantly throughout the history of the United States, and the prospect of enshrining a particular policy in the Constitution was greeted with skepticism.

Seidman provided more technical legal analysis of FMA and concluded that the framers of the amendment are either poor lawyers or are proposing the amendment with no intention of it successfully passing. If FMA were to pass, interpretative ambiguities in the language would give federal judges unprecedented power over domestic issues, namely the meaning of “marriage.” Further, it is not clear how FMA would interface with existing law, particularly the Massachusetts court ruling that guarantees all citizens of that state equal access to marriage. These potential problems lead Seidman to conclude that FMA is little more than a political move intended to rally support for the 2006 elections, a sentiment echoed by the other panelists.

The discussion also covered the more fundamental issue of judicial activism, which FMA is purportedly attempting to solve. Fein advocated a more carefully crafted amendment that would curtail judicial activism by specifically leaving the definition of marriage to legislative bodies. Both Seidman and Agrast thought it was important that courts maintain the current system of checks and balances with legislatures because on some issues, particularly regarding minorities, legislative action is not sufficient for necessary change.

While the panel disagreed on particular standards for judicial involvement, all agreed that legislative action is more appropriate than constitutional change or court decision. Since most state legislatures are already actively grappling with the issue of same sex marriage and there is a vigorous public debate, no justification could be seen for FMA except as a way of scoring easy political points.

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