In this essay, I discuss the Constitution's commitment to three themes - state power over familial matters, individual liberty, and equality - and then demonstrate how the proposed Federal Marriage Amendment is uniquely contrary to all three. I do not intend to go so far as to suggest that the FMA would be an unconstitutional amendment, if such things are possible, nor do I mean to suggest that same-sex marriage is or should be affirmatively protected by the Constitution. I mean only to suggest that proposed amendments altering the Constitution's commitment to multiple existing themes in the Constitution should be scrutinized warily for thematic coherence. Because the FMA is contrary to three existing constitutional themes while furthering no other, the FMA would be a decidedly peculiar appendage to our modern Constitution.

Document Type


Publication Date

Fall 2004

Publication Information

36 Arizona State Law Journal 783-804 (2004)