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The proposed Federal Marriage Amendment presents a deep and perplexing question of constitutional law: Can an amendment to the U.S. Constitution be unconstitutional? In the sense in which we typically think about such matters, the answer is no. We generally look to the courts to determine whether a law is unconstitutional. Once an amendment has been duly ratified, it is part of the Constitution, and the courts are obliged to accept it. The FMA, however, is not a typical amendment proposal, and, in its present posture, it is unconstitutional. To see why, we must go back to a shameful chapter in our history. Article V sets forth the procedure for amending the Constitution. It also contains a clause that was designed to preserve the original compromise over slavery for approximately 20 years. The clause provides that, until 1808, no amendment could be adopted prohibiting the importation of slaves. Constitutional scholars periodically entertain this hypothetical: What if such an amendment had been adopted before 1808? They then argue tediously over whether the hypothetical amendment would have been valid. Their academic exercise would have struck founding-era statesmen as peculiar. They understood that the issue would never have reached the judiciary. Instead, the clause would have been more than sufficiently enforced by the political process. That is, any proposal to amend the Constitution as to slavery before 1808 would have been rejected as unconstitutional by either or both houses of Congress — not to mention by the slave states, were such an amendment ever submitted to them for ratification. Much as an amendment barring importation of slaves would have been incompatible with the text of the Constitution before 1808, the FMA is incompatible with the structure of the Constitution today. And as with the hypothetical amendment, the remedy for the modern defect lies in the political process. It is incumbent upon legislators in Congress and the states, as well as the public generally, to recognize the FMA for what it is — a proposal to repudiate basic structural principles of our founding document. SECOND THOUGHTS To be sure, the FMA on its face does not appear to address constitutional structure. If adopted, the amendment would establish a national definition of marriage: “Marriage in the United States shall consist only of the union of a man and a woman.” This seems an ordinary, if incendiary, volley in the culture wars. Nearly all the commentary on the FMA has focused on this definition. But the FMA also contains a less-noticed second sentence, one that the amendment’s sponsors just rewrote. This sentence is the source of the constitutional tension. It reads, “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 and a woman.” This directive as to how to construe both federal and state constitutions would be unique. The impetus for its inclusion is clear — court decisions requiring a state to recognize civil unions (Vermont) or same-sex marriages (Massachusetts). Such legal interpretations have not been limited to courts. Executive officers, most notably the mayor of San Francisco, have interpreted their state constitutions to require that marriage licenses be issued to gay couples. Advocates of the FMA, including President George W. Bush, have been clear in denouncing such actions as inconsistent with the proper role of the judiciary and, in the case of local officials, the executive. But whether you find the judges’ decisions and the mayors’ actions distressing or not, the response embodied in the FMA violates two of the core structures of the U.S. Constitution. First, it is incompatible with our system of federalism. Second, it is inconsistent with constitutionalism itself. WHERE STATES RULE There has been a good deal of debate as to whether a national definition of marriage violates the principles of federalism. Family law is widely understood as a core sovereign power reserved to the states. Until the controversy over same-sex unions arose, the definition of marriage was a matter left to state law. However, as exceptional as federalizing the definition of marriage would be, and as much as it might weaken state sovereignty, it is not patently inconsistent with the notion of federalism. After all, there are numerous provisions of the Constitution that federalize what had previously been important components of state power. For example, several amendments expanded suffrage rights — the 15th Amendment secures the vote for racial minorities, the 19th for women, the 24th for the poor (by outlawing poll taxes), and the 26th for young adults (by setting the voting age at 18). These amendments trench upon the core state ability to define voter qualifications. The FMA would undermine state sovereignty in a much more subtle yet substantial fashion, by telling state judges and executive officers how they may construe state law — specifically, their state constitution. It is the case, of course, that valid federal law pre-empts state law. But the FMA does not follow the usual formula of setting forth a federal statute with the recognition that contrary state statutes cannot be enforced. Instead, it takes the remarkable step of telling state officials how to interpret their own constitutions. No other provision of the U.S. Constitution does anything like that. This may seem like nitpicking, but is far from it. What is fundamental to state sovereignty is the ability of states to determine for themselves how their laws will be adopted, interpreted, and enforced. No provision of the Constitution or any amendment heretofore adopted tells the states how to order their government or interpret their own laws. The closest the U.S. Constitution comes to this is to assign specific duties to state legislatures with respect to national elections. AND THE MEANING IS . . . Set aside this direct strike against federalism, and the second sentence of the FMA is still troubling, for it attacks constitutionalism itself — by which I mean the way in which the Constitution is designed to be understood and enforced. Although the FMA’s sponsors have recently rewritten the amendment, it turns out that no amount of refinement can save the proposal. This is because it responds to a common problem of constitutional drafting with a most unorthodox solution. The common problem is that direct constitutional commands can be easily evaded through disingenuous legalisms. Moreover, constitutional commands that are clear and effective when drafted may become irrelevant in the future as circumstances change. Our constitutional system responds to these concerns through construction, primarily — though not exclusively — by judges. Judges interpret the Constitution to make sure its legal commands remain vital. Thus, they interpret the Fourth Amendment’s prohibition on warrantless searches and seizures to determine how it should apply in an age of technological possibilities beyond anything the amendment’s drafters could have imagined. Interpretation also prevents the government from inventing clever evasions of our constitutional rights. For example, the Fifth Amendment prohibits the taking of private property for public use without compensation. To try to avoid paying for it, the government might decline to physically seize a property and instead regulate the private owner’s use of it in such a way that it loses all value for any private owner. The Supreme Court has ruled such an evasion to be a “regulatory taking” and requires that the owner be given just compensation. The FMA rejects this bedrock constitutional mechanism of interpretation. The proposal is driven by a deep distrust of judges and politicians. Proponents fear that if they end the amendment with the first sentence directly prohibiting same-sex marriage, judges will construe the equal protection clause or similar state constitutional provisions to undermine the prohibition. They also fear that political officials in some state or city will concoct a clever evasion. Consequently, they are not willing to leave the effectiveness of the FMA in the hands of the usual constitutional process of interpretation. WITHOUT PROTECTION The affront to constitutionalism comes clearly into focus if we examine the first version of the FMA’s second sentence. It reads: “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.” The most obvious consequence of the earlier draft was to suspend the operation of the Constitution in the area of marriage entirely. States would have been free again to enact laws banning interracial marriage and to revive such bans still on the books (as in the Alabama Constitution), because it was only through judicial construction of the U.S. Constitution that such anti-miscegenation laws were struck down. A less obvious, though even more radical, result would have followed from applying the FMA to all “unmarried couples.” In effect, this would have prohibited all marriages since state laws act to “require that marital status . . . be conferred” once a government official construes the legal requirements to find a given couple eligible. While the rewritten version avoids those ridiculous results, it retains the problematic feature that gave rise to them. Even as revised, the FMA would suspend the application of constitutional protections to state laws that grant the “legal incidents” of marriage to gay couples. Thus, any state legislature would be free to enact laws governing same-sex relationships that are racially or religiously discriminatory. It could create civil unions but forbid that status to interracial same-sex couples. It could set more burdensome adoption standards for interfaith gay couples than for interfaith straight couples. The amendment would thus place same-sex couples in a legal no-man’s-land, stripping them of constitutional protections that all citizens currently enjoy. I do not mean to suggest that the FMA’s sponsors intend to strip same-sex couples of constitutional protections. As Sen. Wayne Allard (R-Colo.), a leading FMA sponsor, testified, the revised provision is designed to allow state legislatures to recognize civil unions or other contractual partnership rights for gay couples, but to keep judges and executive officials out of the decision-making process. But the disdain for judges that drives the amendment’s supporters — President Bush foremost among them — makes it inevitable that those couples will be stripped of constitutional rights. A constitution, whether state or federal, has real-world application only when human agents give it effect. If one accepts the need to remove judges and other human interpreters from the equation, it is impossible to draft a provision that truly prohibits gay marriage but does not also effectively repeal the Constitution as applied to same-sex couples. In this respect, it is futile to attempt a drafting fix for the FMA. It is only through the process of constitutional construction — led by judges, legislators, and executive officials — that the Constitution’s clauses have vitality. By repudiating the role that these officers play, the FMA represents more than just a statement about what marriage should be. It represents a fundamental repudiation of our entire constitutional system. Neil Kinkopf is associate professor at Georgia State University College of Law, where he teaches legislation and constitutional law. Kinkopf can be reached at [email protected].

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