The Federal Marriage Amendment: To Protect the Sanctity of Marriage or Destroy Constitutional Democracy?

55 Pages Posted: 14 Jul 2007

See all articles by Joan E. Schaffner

Joan E. Schaffner

George Washington University - Law School


For the several years, primarily as a political ploy, the President and Republican Congress, proposed an amendment to the US Constitution to prohibit marriage between people of the same sex - the Federal Marriage Amendment. This article analyzed this proposed amendment in light of the constitutional principles that govern our society, individual rights, federalism, separation of powers, and judicial review. The article concludes that the FMA is itself constitutionally suspect and is more destructive, on balance, of the basic democratic constitutional principles than any amendment previously adopted or proposed. The amendment violates every tenet of constitutional democracy by: (1) expressly limiting the due process and equality interests of a minority group; (2) precluding the Supreme Court from fulfilling its role as the protector of individual rights; and, (3) foreclosing the states from experimenting with progressive laws designed to promote equality within an area uniquely reserved to the state governments.

Keywords: Federal Marriage Amendment, Same-sex Marriage, Federalism, Separation of Powers, Individual Rights, Constitutional Amendments, Equal Protection, Due Process, Goodridge v. Department of Public Health

JEL Classification: H11, K19

Suggested Citation

Schaffner, Joan E., The Federal Marriage Amendment: To Protect the Sanctity of Marriage or Destroy Constitutional Democracy?. American University Law Review, Vol. 54, p. 1487, 2005, GWU Law School Public Law Research Paper No. 299, GWU Legal Studies Research Paper No. 299, Available at SSRN:

Joan E. Schaffner (Contact Author)

George Washington University - Law School ( email )

2000 H Street, N.W.
Washington, DC 20052
United States
202-494-0354 (Phone)

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