Legal Commentary

The Politics of Same-Sex Marriage, and Constitutional Amendments

By Eugene Volokh

The most interesting politico-legal question raised by Judge Walker?s same-sex marriage decision, I think, is whether it will provoke a new ? and perhaps narrower ? round of Federal Marriage Amendment activity. The earlier attempts at an FMA were quite broad, covering even state courts? and legislatures? decisions on marriage within the state. (I opposed those attempts, largely based on that.) I suspect they also struck many people as somewhat premature, since the thing that many voters worried about ? federal courts mandating recognition of same-sex marriage throughout the country, and not just what was done by state courts in a few states ? was hypothetical. 

But now, with the federal district court decision recognizing a right to same-sex marriage, and another from last month striking down the federal government?s decision not to recognize same-sex marriages (using reasoning suggesting that states had a duty to recognize same-sex marriages), the matter is not hypothetical at all. The question: Will Republicans introduce a narrower amendment, perhaps saying something like,

This Constitution shall not be interpreted in a way that would require any government to recognize a marriage, civil union, domestic partnership, or other similar status, other than a marriage between one man and one woman.

If so, will there be enough votes in Congress to send this to the states, and in state legislatures to ratify it? Even if there aren?t, would this be an effective way for conservatives to argue to the voters that the conservatives? view of the Constitution better matches the voters? than does the liberals? view? And how could liberals effectively argue the opposite?

By the way, I recognize of course that Judge Walker is a Republican appointee; but I take it that it is generally conservatives who oppose his decisions and liberals who support it, and that the voters would recognize that despite the political affiliation of this one judge.

UPDATE: A commenter makes a good point: If, as I strongly suspect, public sentiment will over time turn towards majority support for recognizing same-sex marriage, this proposal might then rebound against the conservative movement. The question is whether conservatives can avoid this by effectively promoting this as an amendment that leaves same-sex marriage to the democratic process, including to changing public sentiment if the sentiment should indeed change.

Full post as published by The Volokh Conspiracy on August 05, 2010 (boomark / email).