The Federal Marriage Amendment and Rule by Judges

Document Type


Publication Date



This gives me an informed perspective to make the following not-exactly courageous judgment: we are now at an interesting crossroads in the debate over the marital status of homosexual unions. Up until now, the fight has been largely conducted at the state level, with homosexual advocacy groups like Lambda Legal Defense and Gay and Lesbian Advocates and Defenders ("GLAD") bringing suit in state courts under state constitutional claims, and the state attorneys general and defenders of monogamous, heterosexual marriage trying to counter the state constitutional claims of liberty and equality. When homosexual marriage made progress in the courts, as in Hawaii and Alaska, supporters of traditional marriage successfully put forward referendums on state constitutional amendments, defining marriage as between a man and a women, which passed overwhelmingly. At the time of this writing, there was such an amendment pending in Massachusetts which, while reserving the term "marriage" for persons of the opposite sex, would grant all the legal incidents of marriage under state law to same-sex couples united in "civil unions". The earliest it could go into effect, however, would be 2006, and the Massachusetts Supreme Judicial Court in Goodridge gave the legislature only 180 days to "take such action as it may deem appropriate in the light of this opinion."


Originally published by the Harvard Journal of Law & Public Policy in 2004.

Please note: You must be on campus to access this article. If you are having trouble viewing the document, please email the library at