Our Unwritten Constitution and Proposals for a Same-Sex Marriage Amendment

Abstract

The U.S. Supreme Court’s opinions in Lawrence v. Texas and Goodridge v. Department of Public Health have sparked interest in amending the United States Constitution to address the issue of same-sex marriages. Whether a constitutional amendment is necessary is unclear. In fact, many see the interest in amendments as part of election-year politics. Some argue that an amendment is premature until the Supreme Court of the United States has spoken. Nevertheless, joint resolutions of amendment have been introduced in Congress, and hearings have been held. This essay considers those amendments. In differing degrees, the proposals run counter to a strong congressional tradition that for over two centuries has entrusted the states with primary responsibility for defining and regulating family relationships. The author concludes that this tradition, which in effect is an unwritten principle of constitutional law, should not be set aside lightly.