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.
76 U. Colo. L. Rev. 599