Who Decides and What Difference Does it Make? Defining Marriage in 'Our Democratic, Federal Republic'

BYU Journal of Public Law, Vol. 18, pp. 273-307, 2004

35 Pages Posted: 27 Aug 2009

Date Written: August, 26 2009

Abstract

The debate over the legality of same-sex marriage has centered largely on the substantive merits of the issue. This article does not.

Instead, it seeks to draw attention to the perhaps equally important-but often overlooked-issue of the proper form and forum for resolving the substantive issue. It asks the question, if we awoke tomorrow to the newspaper headline -- “Legality of Same-Sex Marriage Decided” -- what difference would it make if the succeeding story referred to 1) a federal statute, 2) a U. S. Supreme Court decision, 3) a federal constitutional amendment, 4) a state statute, 5) a state supreme court decision, or 6) a state constitutional amendment? The article attempts to answer that question in light of the structure of what I call “our democratic, federal, republican” form of government.

The article proceeds in three parts. Section one considers the nature of the decision a government makes when it defines marriage, examining the various governmental interests in defining marriage which have been identified by proponents and opponents of legalizing same-sex marriage. Section two then describes the key components of “our democratic, federal republic,” highlighting both theoretical and practical reasons for the adoption of those components. Section three evaluates the relative merits of deciding the same-sex marriage issue in each of the six potential forms in terms of compatibility with the key components of “our” system of government, at the same time examining some practical effects of deciding the issue in some of the forms.

This analysis indicates that where, and in what form, the same-sex marriage debate is resolved has implications for both our current governmental system and the long-term viability of the solution, whatever it may be. It also indicates that the best hypothetical newspaper story would begin with the phrase, “The state constitution was amended today ....”

Keywords: Governmental structure, political decision making, constitution, legislation, same-sex marriage legalization, form of government

Suggested Citation

Worthen, Kevin J., Who Decides and What Difference Does it Make? Defining Marriage in 'Our Democratic, Federal Republic' (August, 26 2009). BYU Journal of Public Law, Vol. 18, pp. 273-307, 2004, Available at SSRN: https://ssrn.com/abstract=1462325

Kevin J. Worthen (Contact Author)

BYU Law School ( email )

D-364 ASB
Brigham Young University
Provo, UT 84602

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