Document Type

Working Paper

Publication Date

2-4-2005

SSRN Discipline

Legal Scholarship Network; Law School Research Papers - Legal Studies; LSN Subject Matter eJournals; Constitutional Law, Jurisprudence & Legal Philosophy eJournals

Abstract

Navigating Dangerous Constitutional Straits A Prolegomenon on the Federal Marriage Amendment and the Disenfranchisement of Sexual Minorities considers the nature of the constitutional amendment process and the Supreme Courts historical approach to incorporating new amendments into the existing constitutional text Professors Krotoszynski and Spitko argue that given the Supreme Courts consistent narrow reading of new amendments to preserve preexisting constitutional rights the Federal Marriage Amendment must be broadly written to override expressly due process and equal protection guarantees against not only sexual orientation discrimination but also gender discrimination In our view however if a proposed Federal Marriage Amendment were sufficiently broad to preclude effectively any constitutional protection for samesex couples it would probably be incapable of securing ratificationThe Article also considers prudential objections to the Federal Marriage Amendment including concerns rooted in federalism the history of amending the Constitution to expand the sphere of guaranteed personal liberty and the dangerous precedent of amending the Constitution to achieve a specific substantive outcome on a very particularized policy question We argue that beyond the substantive problems associated with drafting an effective Federal Marriage Amendment these prudential objections augur strongly against congressional passage and state ratification of such an amendment

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