Brett Marston has a post analyzing the proposed text of the FMA and the intentions behind it, as well as several links to other commentaries on the subject.

I agree with Brett that the proposed text seems simultaneously overbroad and confusing:

SECTION 1. Marriage in the United States shall consist only of the union of a man and a woman. Neither this Constitution or the constitution of any State, nor state or federal law, shall be construed to require that marital status or the legal incidents thereof be conferred upon unmarried couples or groups. . . .

I understand, in a federal system, the impulse to want to prevent having the Full Faith and Credit Clause construed to require, say, Alabama from recognizing marriages performed in, say, Vermont. And, given the proclivity of courts to go off on weird tangents interpreting laws, I think Brett too quickly dismisses the censoring of fundamentalist churches. It would not be all that big a stretch to have churches denied tax exempt status or other benefits if they discriminated against homosexuals in their desire to marry, for example.

Still, a constitutional amendment seems an awfully big step to solve a rather minor issue–let alone one that is only prospective since no states yet recognize same sex marriages.

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James Joyner
About James Joyner
James Joyner is Professor and Department Head of Security Studies at Marine Corps University's Command and Staff College. He's a former Army officer and Desert Storm veteran. Views expressed here are his own. Follow James on Twitter @DrJJoyner.


  1. Heck, that’s even more overbroad than the 21st Amendment’s leeway allowing the states to violate the interstate commerce clause.

    And what business of the federal constitution is it to regulate how a state court should interpret its own constitution or laws (beyond the supremacy clause)?

    How about “Nothing in this Constitution shall be construed to require the United States or any state or territory thereof to give full faith and credit to a marriage consisting of anything other than the union of one man with one woman.”? I’m not sure I particularly like interest-group amendments to the Constitution (or even the goal of this amendment, for that matter), but at least this one doesn’t obligate the states to do anything they don’t want to.

    (Actually, my preferred amendment would be “The 9th and 10th Amendments are henceforth to be printed in boldface. Furthermore, a mirror image thereof shall tattooed on the forehead of every individual required to take the oath of office under this Constitution. Congress shall have the power to enforce this article by appropriate legislation.” But I don’t see that one flying for some reason.)