Navigating Dangerous Constitutional Straits: A Prolegomenon on the Federal Marriage Amendment and the Disenfranchisement of Sexual Minorities

55 Pages Posted: 4 Feb 2005 Last revised: 6 Jun 2015

See all articles by Ronald J. Krotoszynski Jr.

Ronald J. Krotoszynski Jr.

University of Alabama - School of Law

E. Gary Spitko

Santa Clara University - School of Law

Date Written: 2005

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 Court's historical approach to incorporating new amendments into the existing constitutional text. Professors Krotoszynski and Spitko argue that, given the Supreme Court's consistent narrow reading of new amendments to preserve pre-existing 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 same-sex couples, it would probably be incapable of securing ratification.

The 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.

Suggested Citation

Krotoszynski, Ronald James and Spitko, E. Gary, Navigating Dangerous Constitutional Straits: A Prolegomenon on the Federal Marriage Amendment and the Disenfranchisement of Sexual Minorities (2005). 76 University of Colorado Law Review 599-652 (2005). Available at SSRN: https://ssrn.com/abstract=661244

Ronald James Krotoszynski (Contact Author)

University of Alabama - School of Law ( email )

P.O. Box 870382
Tuscaloosa, AL 35487
United States

E. Gary Spitko

Santa Clara University - School of Law ( email )

500 El Camino Real
Santa Clara, CA 95053
United States
408-551-1771 (Phone)

HOME PAGE: http://www.scu.edu/law/FacWebPage/Spitko/

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