Here is my personal legal analysis of the “Marriage Protection Amendment” that is pending before the U.S. Senate. Below is the text of the proposed amendment:
Section 1. This article may be cited as the â€˜Marriage Protection Amendmentâ€™.
Section 2. Marriage in the United States shall consist only of the union of a man and a woman. Neither this Constitution, nor the constitution of any State, shall be construed to require that marriage or the legal incidents thereof be conferred upon any union other than the union of a man a woman.
Ironically, this amendment would dramatically expand the power of the federal courts and diminish the autonomy of state governments.
First, it provides not only a federal definition of marriage but a constitutional definition. It thereby explicitly commits the definition of marriage to the sole interpretation of the federal courts. By constitutionalizing the definition of marriage, it potentially creates a constitutional hook with which the federal courts could, if they were so inclined, rewrite marriage law as a matter of constitutional adjudication.
Second, the import of the amendment is unclear. By mandating a constitutional definition of marriage, it may potentially forbid states from passing civil union statutes. The amendment itself does not clearly address this issue, which means that it is left to the federal courts to resolve.
Third, it takes the unprecedented step of instructing state courts on how they should interpret their state constitutions. This not only interferes with the traditional autonomy of states to construe their own constitutions as they see fit, but it also dramatically expands the reach of the federal courts (and ultimately the Supreme Court) by making the federal courts not only the final arbiter of federal constitutional law, but also at least some issues of state constitutional law. This is at odds with our entire constitutional text and history. Furthermore, it would not keep state courts from saying the ambiguous state statutes require same-sex marriage, and hence wouldnâ€™t even effectively remove state courts from same-sex marriage debates.
Fourth, the amendment makes no effort to address the question of full faith and credit. For example, there is nothing in this amendment that would keep the U.S. Supreme Court from ruling that all states are required by the Full Faith and Credit Clause of the constitution to grant full recognition to the same-sex marriages of Massachusetts. Furthermore, to the extent that Congressâ€™s ability to legislate in this area with statutes like Defense of Marriage Act is in doubt, this amendment does nothing to insure that Congress if free to do so.